Capital Works

Funding Agreement

Safe Places Emergency Accommodation program

Commonwealth of Australia as represented by the Department of Social Services (Department)

[insert entity name] ACN [insert ACN] (Participant)

2

Capital Works Funding Agreement ~*~ Details 4

Agreed terms 5

Part A - Defined terms and interpretation 5

1. Defined terms & interpretation 5

Part B – Term, Project, Works and planning 12

2. Agreement Period 12

3. Planning, design and approvals 12

4. Conduct of the Project 14

5. Subcontracting and subcontractor management 17

6. Assumption of risks for the Works 19

Part C – Property, Security and Designated Use 19

7. Acquisition of a Property 19

8. The Property 21

9. Security 22

10. Designated Use 23

11. Specialist Services 24

Part D – Funding and Other Contributions 27

12. Funding for the Project 27

13. Other Contributions 29

Part E – Managing the Agreement 30

14. Records 30

15. Reports 31

16. Corrective action 32

17. Liaison 32

18. Access to premises and materials 33

Part F – Managing the Project 34

19. Assets 34

20. Step-in rights 35

Part G – Risk management 37

21. Indemnities 37

22. Insurance 38

Part H – Termination 39

23. Suspension and termination 39

24. Repayment of Funds 41

Part I – General requirements 42

25. Intellectual Property Rights 42

26. Protection of Personal Information 43

27. Confidentiality 45

28. Acknowledgement and publications 46

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29. Work health and safety 46

30. Compliance with the Code for the Tendering and Performance of Building Work 2016 49

31. WHS Accreditation Scheme 50

32. Compliance with Laws and policies 51

33. Disputes 51

34. GST, taxes, duties and Government charges 52

35. Notices 54

36. Conflicts of interest 54

37. Fraud control 55

38. Warranties and representations 55

39. General provisions 56

Schedule 1 – Agreement Details 59

Schedule 2 – Milestone Schedule 67

Schedule 3 – Payment Certificate Template 69

Schedule 4 – Notice of Change 73

Attachment A – Project Plan 74

Attachment B – Project Budget 75

Signing page 76

4

Details

Date

Parties

Name Commonwealth of Australia as represented by the Department of Social

Services

ABN 36 342 015 855

Short form name Department

Notice details 71 Athllon Drive, Greenway, ACT, 2900

GPO Box 9820, Canberra, ACT, 2601

Email: Capital@dss.gov.au

Attention: Director, Community Grants Hub

Name [insert entity name] ACN [insert ACN]

ABN [insert ABN]

Short form name Participant

Notice details [insert physical address]

[insert postal address]

Email: [insert]

Attention: [insert]

Background

A The Department is providing the Funds through the Program.

B The Program supports the establishment and delivery of emergency and crisis accommodation to

ensure there are additional safe places for women and children experiencing domestic and family

violence.

C The Participant is committed to helping to achieve the Program Objectives and the Aim of the

Project through the conduct of the Project, and ensuring the Works are available to be used for

the Designated Use throughout the Designated Use Period.

D The Participant has been approved to receive funding from the Department to carry out the

Project in support of the Program Objectives and the Aim of the Project on the terms and

conditions set out in this Agreement.

E In consideration of the Department providing the Funds to the Participant, the Participant has

agreed to perform the Project, and ensure the Works are available to be used for the Designated

Use throughout the Designated Use Period, in accordance with the terms and conditions of this

Agreement.

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Agreed terms

Part A - Defined terms and interpretation

1. Defined terms & interpretation

1.1 Defined terms

In this Agreement, except where the contrary intention is expressed, the following definitions are

used:

Acquittal Report means a Report, in a form acceptable to the Department, to be provided to the

Department in accordance with clause 15.3.

Advisers means the financial, technical or legal advisers of a party and the respective Personnel

of those financial, technical or legal advisers.

Agreement means this document and includes the Schedules and any annexures or

attachments.

Agreement Period means the period described in clause 2, and includes the Project Period and

the Designated Use Period.

Aim of the Project has the meaning provided in Item 1.2 of Schedule 1.

Approval includes any consent, authorisation, registration, filing, agreement, notification,

certificate, permission, licence, approval, permit, authority or exemption issued by, from or with

any Proper Authority.

Approved Auditor means a person who is:

(a) registered as a company auditor under the Corporations Act or an appropriately qualified

member of the Institute of Chartered Accountants in Australia, CPA Australia or the

Institute of Public Accountants;

(b) acting in a professional capacity as an auditor; and

(c) not a principal, member, shareholder, office holder or employee of the Participant;

Asset means an item of tangible property purchased or leased either wholly or in part with the

use of the Funds, that is not a fixture, for the Project with a value at the time of acquisition of fifty

thousand dollars ($50,000) or more, exclusive of GST, but does not include the Property, the

Works or Project Material.

Audit means an audit carried out by the Approved Auditor in accordance with the Australian

Auditing Standards. Audited has a corresponding meaning.

Auditor-General means the office established under the Auditor-General Act 1997 (Cth) and

includes any other person that may, from time to time, perform the functions of that office.

Australian Accounting Standards means the standards of that name maintained by the

Australian Accounting Standards Board (established under section 226 of the Australian

Securities and Investments Commission Act 2001 (Cth)) or other accounting standards which are

generally accepted and consistently applied in Australia.

Australian Auditing Standards means the standards made by the Auditor-General under

section 24 of the Auditor-General Act 1997 (Cth) or other auditing standards which are generally

accepted and consistently applied in Australia.

Bank means an 'authorised deposit-taking institution' as that term is defined in the Banking Act

1959 (Cth).

Business Day means, in relation to the doing of any action in a place, any day other than a

Saturday, Sunday, or public holiday in that place.

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Certificate of Occupancy means a certificate issued by the Proper Authority that provides such

certificates confirming that the relevant Works comply with all relevant Laws, Approvals and other

requirements and are fit for the purpose of occupancy and use for the Designated Use.

Committed means Funds that the Participant is contractually obliged to pay to a third party in

respect of any part of the activities making up the Project and that can be identified in a written

contractual arrangement with that third party.

Commonwealth means the Commonwealth of Australia.

Completion Date means the date that is 45 Business Days after the end of the Designated Use

Period.

Confidential Information means information that:

(a) is by its nature confidential;

(b) is designated by the Department as being confidential; or

(c) the Participant knows or ought to know is confidential,

but does not include information that:

(d) is or becomes public knowledge, other than by breach of this Agreement or by any other

confidentiality obligation.

Conflict means any circumstances where the Participant or any of its subcontractors or

Personnel has an interest (financial or non-financial) or an association that is affected, will affect,

or could be perceived to affect, the Participant's ability to deliver the Project, or their role in the

Project, or its obligations under this Agreement fairly and independently.

Contractor has the meaning given to it in clause 5.1.

Control:

(a) has the meaning given under the Corporations Act;

(b) in respect of an 'entity' (as defined in the Corporations Act) also includes the direct or

indirect power to directly or indirectly direct the management or policies of the entity or

control the membership or voting of the board of directors or other governing body of the

entity (whether or not the power has statutory, legal or equitable force or arises by means

of statutory, legal or equitable rights or trusts, agreements, arrangements, understandings,

practices, the ownership of any interest in a 'marketable security' (as defined in section 9

of the Corporations Act), bonds or instruments of the entity or otherwise); and

(c) also includes owning or controlling, directly or indirectly, more than 50 per cent of the

shares or units in an entity.

Corporations Act means the Corporations Act 2001 (Cth).

Date for Practical Completion means the date specified in Item 3.2 of Schedule 1 by which the

Participant must achieve Practical Completion of the Works.

Date of this Agreement means the date on which this Agreement is signed by the last Party to

do so.

Department Material means any Material:

(a) provided by the Department to the Participant for the purposes of this Agreement; or

(b) copied or derived at any time from the Material referred to in paragraph (a);

Depreciated means the amount representing the same reduced value of an Asset as calculated

for income tax purposes under, and in accordance with, the Income Tax Assessment Act 1997

(Cth).

Designated Use means the designated use specified in Item 4.2 of Schedule 1.

Designated Use Period means the period specified in Item 4.1 of Schedule 1.

Designated Use Report means a Report, in a form acceptable to the Department, to be provided

to the Department in accordance with clause 15.5.

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Dispose means to sell, mortgage or encumber, lease or sub lease, license or sub-license, assign

or otherwise transfer or give up ownership or the right to occupy or use, or to enter into an

agreement to do any of the preceding acts.

Draft Project Plan and Budget means a document including draft versions of the Project plan

and Project budget, which the Participant is required to submit to the Department in accordance

with clause 3.1.

External Administrator means an administrator, controller or managing controller (each as

defined in the Corporations Act), trustee, provisional liquidator, liquidator or any other person

(however described) holding or appointed to an analogous office or acting or purporting to act in

an analogous capacity.

Final Report means the Report, in a form acceptable to the Department, to be provided to the

Department in accordance with clause 15.4.

Freedom of Information Commissioner means the office established under the Australian

Information Commissioner Act 2010 (Cth) and includes any other person that may, from time to

time, perform the functions of that office.

Funding Arrangement Manager means the Department person or position holder specified in

Item 7.1 of Schedule 1.

Funds means the amount payable by the Department to the Participant under this Agreement

and includes any interest earned on the Funds.

Government Agency means:

(a) a body corporate or an unincorporated body established or constituted for a public

purpose by Commonwealth legislation, or an instrument made under that legislation;

(b) a body established by the Governor-General or by a Minister of State of the

Commonwealth, including departments;

(c) an incorporated company over which the Commonwealth exercises control; or

(d) any federal, state, local government, semi-government, quasi-government or other

department, body or authority (statutory or otherwise).

Guidelines means the guidelines for the Program prepared by the Department as described in

Item 1.3 of Schedule 1.

Information Commissioner means the office established under the Australian Information

Commissioner Act 2010 (Cth) and includes any other person that may, from time to time, perform

the functions of that office.

Insolvency Event means, in respect of the Participant, any of the following:

(a) it becomes insolvent within the meaning of section 95A, or is taken to have failed to

comply with a statutory demand under section 459F(1), or must be presumed by a court to

be insolvent under section 459C(2), or is the subject of a circumstance specified in section

461 (whether or not an application to court has been made under that section) or, if the

person is a Part 5.7 body, is taken to be unable to pay its debts under section 585, of the

Corporations Act;

(b) except with the Department's consent:

(i) it is the subject of a Liquidation, or an order or an application is made for its

Liquidation; or

(ii) an effective resolution is passed or meeting summoned or convened to consider a

resolution for its Liquidation;

(c) an External Administrator is appointed to it or any of its assets or a step is taken to do so

or its Related Body requests such an appointment;

(d) if a registered corporation under the Corporations Act, a step is taken under section

601AA, 601AB or 601AC of the Corporations Act to cancel its registration;

(e) if a trustee of a Trust, it is unable to satisfy out of the assets of the Trust the liabilities

incurred by it as and when those liabilities fall due;

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(f) any event or conduct occurs which would enable a court to grant a petition, or an order is

made, for the bankruptcy of an individual or his estate pursuant to the Bankruptcy Act

1966 (Cth);

(g) any application (not withdrawn or dismissed within five (5) Business Days) is made to a

court for an order, a meeting is convened, a resolution is passed or any negotiations are

commenced, for the purpose of implementing or agreeing:

(i) a moratorium of any debts of a person;

(ii) a personal insolvency agreement;

(iii) any other assignment, composition or arrangement (formal or informal) with a

person's creditors;

(iv) any similar proceeding or arrangement by which the assets of a person are

subjected conditionally or unconditionally to the control of that person's creditors or

a trustee; or

(v) or any agreement or other arrangement of the type referred to in this

paragraph (g) is ordered, declared or agreed to;

(h) a person becomes an insolvent under administration (as defined in the Corporations Act);

(i) an analogous or equivalent event to any listed above occurs in any jurisdiction; or

(j) it stops or suspends payment to all or a class of creditors generally.

Intellectual Property Rights means all intellectual property rights subsisting anywhere in the

world (whether registered or unregistered, and whether or not capable of being registered),

including the following rights:

(a) patents, copyright, rights in circuit layouts, designs, trade marks and service marks

(including goodwill in those marks), domain names, trade names and any rights to prevent

third parties from using and disclosing confidential information (including know-how and

trade secrets);

(b) any application or right to apply for registration of any of the rights referred to in

paragraph (a); and

(c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) that may subsist

anywhere in the world.

Interest means interest calculated at the 90 day bank-accepted bill rate (available from the

Reserve Bank of Australia) less 10 basis points.

Item means an Item in Schedule 1.

Law means any applicable statute, regulation, by-law, ordinance or subordinate legislation in

force from time to time anywhere in Australia, whether made by a State, Territory, the

Commonwealth, or a local government, and includes the common law and rules of equity as

applicable from time to time.

Liquidation means:

(a) a winding up, dissolution, liquidation, provisional liquidation, administration, bankruptcy or

other proceeding for which an External Administrator is appointed, or an analogous or

equivalent event or proceeding in any jurisdiction; or

(b) an arrangement, moratorium, assignment or composition with or for the benefit of creditors

or any class or group of them.

Material means any software, firmware, documented methodology or process, tools, object

libraries, documentation or other material in whatever form, including without limitation any

reports, specifications, business rules or requirements, user manuals, user guides, operations

manuals, training materials and instructions, and the subject matter of any Intellectual Property

Rights.

Milestone means a milestone set out in the Milestone Schedule.

Milestone Schedule means the milestone schedule set out in Schedule 2, as updated from time

to time in the Project Plan that is approved by the Department in accordance with clause 3.33.

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Moral Rights means each and every "moral right", as defined in the Copyright Act 1968 (Cth).

Notice of Change means a notice of change substantially in the form of Schedule 4.

Ombudsman means the office established under the Ombudsman Act 1976 (Cth) and includes

any other person that may, from time to time, perform the functions of that office.

Other Contributions means financial or in-kind resources (with in-kind resources valued at

market rates) from third parties or the Participant for the Project, other than the Funds.

Participant Contact Officer means the Participant person or position holder specified in Item 7.2

of Schedule 1.

Party means a party to this Agreement.

Personal Information has the meaning given in the Privacy Act.

Personnel means an officer, employee, contractor, subcontractor, agent or representative of that

party (except that the Department's Personnel excludes the Participant and the Participant

Personnel).

Practical Completion occurs when the Works have been completed and the requirements of

clause 4.8 have been satisfied.

Privacy Commissioner means the office established under the Australian Information

Commissioner Act 2010 (Cth) and includes any other person that may, from time to time, perform

the functions of that office.

Privacy Act means the Privacy Act 1988 (Cth).

Program means the program referred to in Recitals A and B of this Agreement and includes the

Project conducted under that Program pursuant to this Agreement.

Program Objectives means the program objectives described in Item 1.1 of Schedule 1.

Progress Report means a Report, in a form acceptable to the Department, to be provided to the

Department in accordance with clause 15.2(a) and Item 5.1 of Schedule 1.

Project means the project described in Item 2.1 of Schedule 1 and includes carrying out the

Works.

Project Budget means the budget set out at Attachment B to this Agreement, detailing how the

Participant will expend the Funds, and identifying any Other Contributions (if any) and the

proposed expenditure of such amounts for the purposes of conducting the Project and otherwise

performing obligations under this Agreement, as updated by the Participant from time to time,

provided any amendments comply with clause 3.3.

Project Documents means all plans, drawings and other information relating to the Project and

the Works that are brought into existence by or on behalf of the Participant under or in connection

with this Agreement or otherwise relating to the Project or the Works, including those documents

identified in Item 2.4 of Schedule 1.

Project Manager means an independent, suitably qualified project manager engaged by the

Participant to supervise all construction works (including the Works) who is not a principal, an

employee or an officer of the Participant.

Project Material means all Material that is:

(a) created by the Participant (or its subcontractors) for the purpose of or as a result of

performing the Project, including all Project Documents;

(b) incorporated in, supplied or required to be supplied along with the Material referred to in

paragraph (a); or

(c) copied or derived from the Material referred to in paragraphs (a) or (b);

but excludes the Department Material.

Project Period means the period specified in Item 3.3 of Schedule 1.

Project Plan means the project plan set out at Attachment A to this Agreement, detailing how the

Participant will conduct and complete the Project, including details of the Works and the

timeframes for completion of various stages of the Project, as updated by the Participant from

time to time, provided any amendments comply with clause 3.33.

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Proper Authority includes any ministry, department, government, governmental or

semi-governmental authority, agency, instrumentality, council, corporation or other legal entity

with legislative authority which has jurisdiction or authority over or in connection with this

Agreement, the Works, a Project, a Property or the Designated Use.

Property means the property on which the Works are to be undertaken that is detailed in Item 2.3

of Schedule 1 or is approved by the Department in accordance with clause 7.2 and includes the

land, and any buildings, fixtures and other improvements on the land, but does not include items

that would be regarded as fittings or chattels at Law.

Proposed Property has the meaning given to it in clause 7.2.

Related Agreement means any other agreement between the Parties under which the

Department provides funding to the Participant, whether entered into before or after this

Agreement.

Related Body means, regardless of any body's trustee or other capacity:

(a) a body corporate which would be related under section 50 of the Corporations Act; or

(b) an entity which Controls, is Controlled by, or is under common Control with, that body.

Related Entity has the meaning given to it in the Corporations Act.

Reports means the reports that the Participant is required to produce and provide to the

Department in accordance with clause 14 and Item 5 of Schedule 1.

SOP Act means:

(a) Building and Construction Industry Security of Payment Act 1999 (NSW);

(b) Building and Construction Industry Security of Payment Act 2002 (Vic);

(c) Building Industry Fairness (Security of Payment) Act 2017 (Qld);

(d) Construction Contracts Act 2004 (WA);

(e) Construction Contracts (Security of Payments) Act 2004 (NT);

(f) Building and Construction Industry Security of Payment Act 2009 (Tas);

(g) Building and Construction Industry (Security of Payment) Act 2009 (ACT);

(h) Building and Construction Industry Security of Payment Act 2009 (SA); and

(i) any legislation in any State or Territory of Australia addressing security of payment in the

building and construction industry.

Specialist Service includes services focussed on women and children that are rights-based,

client-centred, trauma-informed, culturally competent and accessible, age appropriate, have

gender expertise, demonstrates expertise and understanding of domestic and family violence, and

places the safety, needs and interests of women and children at the centre of all decisions.

Specialist Service Provider means any person or organisation who, from time to time, provides

a Specialist Service in connection with the Program at the Property or the Works.

Specified Personnel Position in respect of a Project means a position identified in Item 8 of

Schedule 1.

Trust means, in respect of a person, each trust or managed investment scheme of which it is or

becomes trustee or responsible entity.

Uncommitted Funds means all Funds that are, at the time of the Department's request, Unspent,

or cannot be shown to the reasonable satisfaction of the Department to have been spent or

Committed in accordance with this Agreement.

Unforeseen Event means a circumstance beyond the Participant's reasonable control (other than

lack of funds for any reason or any strike, lockout and labour disputes), including acts of God,

natural disasters, acts of war, riots and strikes outside the Participant's organisation.

Unspent means Funds for the Project that have not been spent or Committed by the Participant.

WHS Act means the Work Health and Safety Act 2011 (Cth).

WHS Laws means the WHS Act and regulations made under the WHS Act.

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Works means that part of the Project which relates to the design, construction, modification,

expansion, refurbishment or fit-out (as the case may be) and related activities at the Property, as

contemplated by the Project Plan and also as described in Item 2.2 of Schedule 1.

1.2 Interpretation

In this Agreement, unless the contrary intention appears:

the singular includes the plural and vice versa, and a gender includes other genders;

another grammatical form of a defined word or expression has a corresponding meaning;

a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of,

or schedule or annexure to, this Agreement, and a reference to this Agreement includes

any schedule or annexure;

a reference to a document or instrument includes the document or instrument as novated,

altered, supplemented or replaced from time to time;

a reference to A$, $A, dollar or $ is to Australian currency;

a reference to time is to Canberra, Australia time;

a reference to a party is to a Party to this Agreement, and a reference to a party to a

document includes the party's executors, administrators, successors and permitted

assigns and substitutes;

a reference to a person includes a natural person, partnership, body corporate,

association, governmental or local authority or agency or other entity;

a reference to a statute, ordinance, code or other law includes regulations and other

instruments under it and consolidations, amendments, re–enactments or replacements of

any of them;

a word or expression defined in the Corporations Act has the meaning given to it in the

Corporations Act;

the meaning of general words is not limited by specific examples introduced by including,

for example or similar expressions;

any agreement, representation, warranty or indemnity by two or more parties (including

where two or more persons are included in the same defined term) binds them jointly and

severally;

any agreement, representation, warranty or indemnity in favour of two or more parties

(including where two or more persons are included in the same defined term) is for the

benefit of them jointly and severally;

a rule of construction does not apply to the disadvantage of a party because the party was

responsible for the preparation of this agreement or any part of it;

if a day on or by which an obligation must be performed or an event must occur is not a

Business Day, the obligation must be performed or the event must occur on or by the next

Business Day;

clause headings are inserted for convenient reference only and have no effect in limiting

or extending the language of provisions to which they refer;

where any word or phrase is given a defined meaning, any other form of that word or

phrase has a corresponding meaning; and

the term 'may' where used in the context of a right or remedy exercisable by the

Department means that the Department may exercise that right or remedy in its sole and

absolute discretion, and the Department has no obligation to the Participant to do so

unless expressly stated.

1.3 Priority of documents

If there is any conflict or inconsistency between:

the terms and conditions contained in the clauses of this Agreement and any part of a

Schedule, then the terms and conditions of the clauses will prevail to the extent of the

conflict or inconsistency;

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the terms and conditions contained in the clauses of this Agreement and any part of the

annexures or attachments (if any), then the terms and conditions of the clauses of the

Agreement will prevail to the extent of the conflict or inconsistency; and

any part of a Schedule and any part of the annexures or attachments (if any), then the

Schedule will prevail to the extent of the conflict or inconsistency.

Part B – Term, Project, Works and planning

2. Agreement Period This Agreement commences on the Date of this Agreement and, unless terminated earlier,

expires on the Completion Date.

3. Planning, design and approvals

3.1 Draft Project Plan and Budget

The Participant must submit to the Department a draft Project plan and draft Project

budget (Draft Project Plan and Budget) on or before the date specified in the Milestone

Schedule for the Project or, if no date is specified, within 20 Business Days after the Date

of this Agreement.

The Participant must ensure that the Draft Project Plan and Budget:

(i) has been prepared diligently, effectively and to a high professional standard;

(ii) will, if implemented in accordance with this Agreement, ensure that all timeframes

arising under this Agreement will be met and the Works will meet all requirements

of this Agreement and, in particular, will be fit for the Designated Use;

(iii) includes, if applicable, a revised Milestone Schedule that identifies, amongst other

things, the dates for completion of Milestones; and

(iv) is consistent with the Aim of the Project and Program Objectives.

3.2 Review of Project Plan and Project Budget

The Department will review the Draft Project Plan and Budget submitted under

clause 3.1(a) and notify the Participant that either:

(i) the Draft Project Plan and Budget are acceptable to the Department; or

(ii) the Draft Project Plan and Budget in the Department's opinion, require amendment

in order to meet the requirements specified in clause 3.1(b).

The Department may accept the Draft Project Plan and Budget in accordance with

clause 3.2(a)(i) or require amendment in accordance with clause 3.2(a)(ii) in its discretion.

On receipt of notification of acceptance from the Department under clause 3.2(a)(i), the

Draft Project Plan and Budget will constitute the Project Plan and Project Budget.

On receipt of notification under clause 3.2(a)(ii), the Participant must amend the Draft

Project Plan and Budget so as to take into account the Department's comments and

resubmit the document within 10 Business Days of the date of the Department's

notification for re-consideration by the Department in accordance with clause 3.2(a).

The Department's review of, or comment on, the Draft Project Plan and Budget does not

in any way limit or affect the Participant's obligations under this Agreement.

3.3 Project in accordance with the Project Plan and the Project Budget

The Participant must perform the Project in accordance with:

(i) the Project Plan set out at Attachment A to this Agreement; and

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(ii) the Project Budget set out at Attachment B to this Agreement.

The Participant must not make any amendments to the Project Plan or the Project Budget

(or both as the case may be) that would substantively alter:

(i) the nature of, or the manner of completion of, the Works as provided for in the

Project Plan or Project Budget (or both as the case may be);

(ii) a date for completion of a Milestone;

(iii) the amount of the Funds to be spent by the Participant on any aspect of the Works

or the nature of items on which the Funds are to be spent as provided for in the

Project Budget; or

(iv) the consistency of the Project Plan or the Project Budget (or both as the case may

be) with the Aim of the Project and the Program Objectives,

unless approved in writing by the Department. Any amendment to the date for completion

of a Milestone must be approved in writing by the Department.

3.4 Design of the Works

The Participant is responsible for the design of the Works and must ensure the design of

the Works:

(i) is conducted with the level of skill and care of a prudent and competent design

professional;

(ii) complies with the regulatory requirements of the relevant State or Territory and

local government in the jurisdiction in which the Works are to be conducted;

(iii) are fit for the purpose of the Designated Use on and from the date of achievement

of Practical Completion for the Project, and throughout the Designated Use

Period; and

(iv) complies with all Laws and required Approvals.

The Participant must ensure that a Certificate of Occupancy is issued in respect of the

Works on the achievement of Practical Completion.

The Participant must develop, prepare and maintain copies of all documents necessary to

complete the Works, including all documents that would be prepared by a prudent and

competent design professional, in order to ensure the Works are, on the date of

achievement of Practical Completion, fit for the purposes of the Designated Use,

throughout the Designated Use Period.

3.5 Project Documents

The Participant must deliver the Project Documents identified in Item 2.4 of Schedule 1 to

the Department no later than the date specified in the Milestone Schedule for the Project.

The Participant must, at its cost, make copies of the Project Documents available to the

Department for inspection and audit in accordance with clause 18.

3.6 Participant to obtain Approvals

The Participant must obtain all Approvals for:

the construction of the Works; and

the use of the Works for the Designated Use during the Designated Use Period,

and must deliver a copy of each Approval to the Department promptly on request.

3.7 Variations to Works

If the Works must be varied to obtain any Approval, the Participant must notify the Department in

writing of those variations and must ensure that no variation will adversely affect the Project, the

Works, the Aim of the Project and Program Objectives and the use of the Works for the

Designated Use throughout the Designated Use Period.

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3.8 Inconsistency

To the extent of any inconsistency between:

the Project Plan and this Agreement (including the Milestone Schedule); or

the Project Budget and this Agreement (including the Milestone Schedule),

those documents (including the dates specified in the updated Milestone Schedule and set out in

the Project Plan) will prevail over the terms of this Agreement.

4. Conduct of the Project

4.1 Participant obligations

The Participant must:

(i) perform the Project in accordance with this Agreement;

(ii) complete each of the Milestones in the Milestone Schedule (by achieving, to the

satisfaction of the Department, the criteria for completion of the relevant Milestone

specified in the Milestone Schedule) on or before the relevant date for completion

of that Milestone specified in the Milestone Schedule; and

(iii) ensure that all work undertaken under this Agreement is consistent with, and in

furtherance of, the Program Objectives and the Aim of the Project.

The Participant must:

(i) if specified in Item 8 of Schedule 1, appoint in accordance with clause 4.3 a

Project Manager to supervise the Works;

(ii) comply with the timeframes (if any) specified in the Project Plan and otherwise

comply with the timeframes specified in the Milestone Schedule for completion of

the Works and the Project; and

(iii) ensure that the Works are carried out:

(A) in accordance with the Approvals for the Works;

(B) in accordance with the Project Plan and Project Budget;

(C) in accordance with all Laws applicable to the Works;

(D) in accordance with relevant Australian industry standards, best practices

and guidelines, or where none apply, relevant international industry

standards, best practice and guidelines, including as updated from time to

time;

(E) diligently, effectively and to a high professional standard;

(F) to high professional standards of occupational health and safety; and

(G) so as to ensure that the Works will be fit for purpose of the Designated

Use.

Without limiting clauses 4.1(a)(ii) or 16, the Participant must, as soon as it becomes aware

that it is unlikely to complete any of the deliverables set out in the Milestone Schedule for

a Milestone by the relevant date for completion specified in the Milestone Schedule:

(i) notify the Funding Arrangement Manager of the following matters in writing:

(A) the reasons for the anticipated delay in completing the deliverables set out

in the Milestone Schedule for the relevant Milestone; and

(B) the date on which the Participant anticipates completing all deliverables

set out in the Milestone Schedule for the relevant Milestone; and

(ii) prepare an updated Project Plan for consideration by the Department.

4.2 Timeframes

To the extent of any inconsistency between the timeframes (if any) specified in:

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the Project Plan; and

Item 3 of Schedule 1 and the Milestone Schedule,

the timeframes specified in the Project Plan will prevail.

4.3 Specified Personnel Positions

The Participant must:

promptly after the Date of this Agreement, appoint a suitably qualified person to each

Specified Personnel Position;

promptly after appointment, notify the Department of the identity and qualifications of each

person appointed to a Specified Personnel Position;

where a person ceases to perform a Specified Personnel Position for any reason,

promptly notify the Department of the date of that cessation and ensure that the Specified

Personnel Position is not left vacant for a period of more than 10 Business Days; and

promptly after appointment, notify the Department of the identity and qualifications of any

person appointed to fill a vacant Specified Personnel Position.

4.4 Commencement of Works

Without limiting the Participant's obligations under clause 4.4(b), the Participant must not

commence the Works until it has:

(i) received a letter of commencement from the Department;

(ii) obtained all relevant Approvals required under clause 3.6 that are necessary to

enable the commencement of the Works;

(iii) obtained all insurances required under clause 22.2; and

(iv) where applicable, provided security to the Department in accordance with

clause 9,

and it has obtained written confirmation from the Department (which will not be

unreasonably withheld) that the Department is satisfied that the Participant has complied

with the requirements set out in clauses 4.4(a)(i) to 4.1(a)(iii) (inclusive) above.

The Participant must:

(i) obtain written confirmation from the Department under clause 4.4; and

(ii) commence the Works,

on or before the date specified for the commencement of the Works in Item 3.1 of

Schedule 1.

4.5 Access

Upon giving reasonable notice and subject to the Participant's reasonable requirements in

relation to safety and security:

(i) the Department, or persons authorised by the Department, may enter the Property

to inspect and examine the Works; and

(ii) the Department may give notice to the Participant of any omission, fault or defect

in the Works.

Despite the Department's right to inspect and examine the construction of the Works:

(i) the Department is not obliged to check the construction of the Works for any

defect, fault or omission; and

(ii) the Participant is not relieved of responsibility for any defect, fault or omission in

respect of the Works.

4.6 Rectification

Within 10 Business Days, or such longer time as may be agreed to in writing by the Department,

having regard to the nature of the omission, fault or defect, after the receipt of a notice under

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clause 4.5(a)(ii), the Participant must cause all matters specified in that notice to be rectified and

must notify the Department when rectification has been effected.

4.7 Variations

The Participant must notify the Department in writing of all proposed variations to the

Works that could or might reasonably be expected to have an effect on:

(i) the overall cost of the Works specified in the Project Budget;

(ii) without limiting clause 4.1(c), the nominated Milestones for completion of the

Works;

(iii) the Date for Practical Completion;

(iv) the fitness of the Works for the purpose of the Designated Use;

(v) the accuracy of the Project Plan or the Project Budget; or

(vi) the Approvals obtained in relation to the Works.

The Participant must not vary the Works without the consent in writing of the Department,

which will not be unreasonably withheld.

4.8 Practical Completion

In order to achieve Practical Completion:

(i) the Works must be:

(A) complete and free from errors, omissions and defects, except for errors,

omissions or defects that:

(I) are of a minor nature;

(II) the immediate making good of which by the Participant is not

reasonably practicable;

(III) the existence of which or the making good of which by the

Participant will not significantly inconvenience users of the Property

or the Works for the Designated Use; and

(IV) do not cause any legal or physical impediment to the use and

occupation of the Property and the Works for the Designated Use;

and

(B) fit for the Designated Use;

(ii) the Participant must have provided to the Department a copy of the Certificate of

Occupancy in respect of the Works;

(iii) the Works must be available to be used for the Designated Use; and

(iv) the Participant must obtain from:

(A) its authorised representative; and

(B) a suitably qualified and independent person engaged for the purposes of

inspecting the Works on their completion and determining whether, in the

professional opinion of that person, the Works meet the requirements set

out in clauses 4.8(a)(i)(A) and 4.8(a)(i)(B),

written certification that the Works meet the requirements set out in

clauses 4.8(a)(i)(A) and 4.8(a)(i)(B), and provide each such written certification to

the Department.

The Participant must achieve Practical Completion of the Works on or before the Date for

Practical Completion.

The Department will extend the Date for Practical Completion by the period notified to the

Participant in writing where:

(i) in the Department's reasonable opinion, the Participant has actually been delayed

in reaching Practical Completion by the Date for Practical Completion as a direct

result of:

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(A) a breach of this Agreement by the Department; or

(B) an Unforeseen Event;

(ii) the Participant has provided the Department with written notice of the delay within

5 Business Days of becoming aware of the cause of the delay arising; and

(iii) the Participant has taken all reasonable steps to avoid the delay and to minimise

its effects.

The Participant will only be entitled to an extension to the Date for Practical Completion

under clause 4.8(c)(i) if it has complied with clauses 4.8(c)(ii) and 4.8(c)(iii).

The Participant's entitlement to an extension to the Date for Practical Completion under

clause 4.8(c)(i) (if any) is the Participant's sole remedy in respect of any delay.

The Participant will not be entitled to an extension to the Date for Practical Completion

under clause 4.8(c)(i) where more than one event causes concurrent delays and at least

one of those events is not a cause described in clause 4.8(c)(i).

Notwithstanding that the Participant has not asked for an extension of time or complied

with clauses 4.8(c)(ii) and 4.8(c)(iii), the Department may, in its sole discretion, at any time

and from time to time and for any reason, extend the Date for Practical Completion by

providing notice to the Participant in writing.

In exercising the discretion in clause 4.8(g), the Department is not required to exercise its

discretion for the benefit of, or with regard to the interests of, the Participant.

The Participant must promptly rectify any defects, faults or omissions in the Works which:

(i) are the exceptions referred to in clause 4.8(a)(i)(A); or

(ii) otherwise become apparent within 12 months after the date of achievement of

Practical Completion and which would, or would reasonably be expected to affect

the fitness of the Works or the Property (or both as the case may be) for the

purpose of the Designated Use. This clause 4.8(i)(ii) does not limit the

Department's rights under this Agreement or otherwise at Law.

5. Subcontracting and subcontractor management

5.1 Subcontracting

The Participant must not enter into any arrangement with a contractor or subcontractor

(Contractor) other than under an arrangement that facilitates compliance by the

Participant with the requirements of this clause 5.

The Participant agrees that:

(i) it will not enter into an arrangement with a Contractor for the performance of any

part of the Project (other than an arrangement for the building, design,

construction or refit of any part of the Works) without the prior approval in writing

of the Department;

(ii) the Contractors, if any, specified in Item 2.5 of Schedule 1 will perform work in

relation to the Project in accordance with this Agreement and are approved by the

Department to do so; and

(iii) it will not make payment of its Contractors conditional on the Participant's receipt

of the Funds.

The Department may impose any terms and conditions it considers appropriate when

giving its approval under clause 5.1(b)(i).

Subcontracting any part of the Works to a Contractor will not relieve the Participant of any

of its obligations under this Agreement.

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5.2 Department discretion

If the Department determines that a Contractor is unsuitable or inappropriate, the Participant

must, if notified by the Department to do so, cease using that Contractor in relation to the

performance of the Project.

5.3 Details of new Contracts

As part of each Acquittal Report, the Participant must provide the Department with a summary of

all new contracts the Participant has entered into with Contractors in relation to the Project

(Contracts) since the last Acquittal Report, including details of:

the identity of the Contractor;

the value of the Contract;

the subject matter of the Contract; and

the expected completion date for the Contract,

and, if requested by the Department, a copy of the full Contract.

5.4 Managing Contractor performance

The Participant must manage and administer each Contract in accordance with this

Agreement, including by monitoring each Contractor's performance of, and compliance

with, its contractual obligations.

The Participant must, to the extent it is legally able to do so, comply with any written

direction of the Department concerning a Contract.

5.5 Terms and conditions of Contracts

In respect of all Contractors, the Participant must ensure that:

(i) the Contract contains provisions substantially the same as this Agreement

including those relating to subcontracting, work, health and safety, intellectual

property, audit and access, privacy, confidentiality, warranties and indemnities,

disclosure, repayment of funds, fraud control and termination;

(ii) the Participant has a right to terminate the Contract immediately in the event of

this Agreement being terminated;

(iii) the Contract contains obligations requiring the Contractor to:

(A) maintain records about the progress of the Project and provide progress

reports to the Participant's satisfaction upon each progress claim, including

to allow the Participant to comply with its obligations under clauses 14 and

15;

(B) manage the Funds paid by the Participant to the Contractor in a way that is

not inconsistent with this Agreement;

(iv) the other party to the Contract acknowledges that:

(A) it may be considered a ‘Commonwealth Participant’ for the purposes of the

Ombudsman Act 1976 (Cth);

(B) it may be subject to investigation by the Ombudsman under that Act; and

(C) the Department will not be liable for the cost of any such investigation by

the Ombudsman in connection with the Contract or this Agreement.

In any arrangement referred to in clause 5.1, the Participant agrees:

(i) to specify the purposes for which the Funds are being paid (Specified Purposes);

and

(ii) to require the Contractor to repay to the Participant any Funds which are not

properly acquitted, or which remain Unspent or not Committed (as if the definitions

of Unspent and Committed in clause 1.1 referred to the Contractor instead of the

Participant), or which have been spent for purposes other than the Specified

Purposes, within one month after the termination or expiry of the Contract with that

Contractor.

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5.6 Recovery of Funds

The Participant must immediately notify the Department of any funds it recovers under

clause 5.5(b). Any such funds recovered under clause 5.5(b) will constitute Funds under

the terms of this Agreement and the Participant must deal with those Funds accordingly,

or as otherwise directed in writing by the Department.

On receipt of notice under clause 5.6(a), the Department may by written notice to the

Participant require the Participant to repay to the Department any or all of the recovered

funds, and the Participant must repay to the Department the amounts specified in the

notice within 20 Business Days of the date of the notice.

6. Assumption of risks for the Works

6.1 Participant responsible

The Participant is fully responsible for the performance of the Project and for ensuring compliance

with the requirements of this Agreement and all Laws, and will not be relieved of that responsibility

because of any:

involvement by the Department or any third party in the performance of the Project;

payment of the Funds made to the Participant on account of the Project; or

subcontracting of all or any part of the Works or the Project.

6.2 Participant accepts risk

The Participant accepts all risks in respect of, and the Department does not accept any risk for,

the conduct of the Works, including all risks of, and associated with, the design, construction and

commissioning of the Works, and the risk of the actual cost of the design, construction and

commissioning of the Works being greater than anticipated.

Part C – Property, Security and Designated Use

7. Acquisition of a Property

7.1 Overview

This clause 7 only applies if Item 2.3 of Schedule 1 states that a property is to be acquired

(including by way of purchase or lease) by the Participant prior to the Participant commencing any

Works on that property.

7.2 Participant to identify suitable property

Where a specific property is not identified in Item 2.3 of Schedule 1, the Participant must

identify a property that it considers would be suitable for the Project (Proposed Property)

and seek the Department's approval to acquire an interest in that Proposed Property for

the purpose of the Project.

When seeking the Department's approval to acquire an interest in the Proposed Property

under clause 7.2(a), the Participant must provide to the Department:

(i) details of the interest the Participant proposes to acquire in the Proposed

Property, including a title search of the Proposed Property identifying the

registered proprietor of the Proposed Property;

(ii) details of the cost to the Participant of acquiring and holding its interest in the

Proposed Property;

(iii) a report from a suitably qualified and independent person confirming that the

Proposed Property meets the Property Requirements specified in clause 7.3(a);

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(iv) a valuation of the Proposed Property to be obtained by the Participant at the

Participant's expense; and

(v) any other information in relation to the Proposed Property that the Department

reasonably requires.

7.3 Requirements for the Property

The Proposed Property must meet the following requirements:

(i) the Property meets the present and future needs of the Program Objectives,

including the construction or development of emergency accommodation in

accordance with the Aim of the Project;

(ii) the Property is appropriately zoned and can be used by the Participant for the

Works and the Designated Use on terms and conditions satisfactory to the

Department;

(iii) the Property meets the requirements, if any, specified in Item 2.3 of Schedule 1,

including in relation to geographic or regional location; and

(iv) the Property is not subject to any heritage requirements or native title claims,

(the Property Requirements).

When seeking the Department's approval to acquire an interest in a Proposed Property,

the Participant must provide all necessary supporting information and documentation as

required by the Department (in its discretion) to confirm that the Proposed Property meets

the Property Requirements.

7.4 Acquiring the Property

The Participant must not expend any part of the Funds to acquire an interest in the

Proposed Property until it has:

(i) obtained written approval from the Department to acquire an interest in that

Proposed Property; and

(ii) complied with any conditions on the Department's approval of the Participant's

acquisition of an interest in the Proposed Property given in accordance with

clause 7.4(b).

The Department may grant, withhold or condition its approval of the Participant's

acquisition of an interest in the Proposed Property in its discretion, however if the

Department does not grant approval it must notify the Participant of the reasons for its

decision.

Clause 7.4(a) does not prevent the Participant from:

(i) expending part of the Funds already received on activities preparatory to acquiring

an interest in the Property; or

(ii) entering into a written agreement (Acquisition Agreement) with the registered

proprietor of the Proposed Property to acquire an interest in the Proposed

Property, provided that the Acquisition Agreement includes the following

conditions (or conditions having the same effect):

(A) the Acquisition Agreement is subject to the Participant receiving approval

from the Department to acquire an interest in the Property and can be

rescinded by the Participant, if the Participant does not receive the

approval from the Department to acquire an interest in the Property; and

(B) the Acquisition Agreement is subject to the Property being appropriately

zoned for the Designated Use, and all necessary Approvals being

obtained, on terms and conditions acceptable to the Department, for the

Property to be used for the Designated Use and can be rescinded by the

Participant, if the Property is not appropriately zoned for the Designated

Use or all necessary Approvals cannot be obtained on terms and

conditions acceptable to the Department.

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8. The Property

8.1 Location of Project

The Project must be performed on the Property.

8.2 Participant warranties and representations

The Participant warrants and represents to the Department during the Project Period and the

Designated Use Period that:

there are and will be no restrictive covenants, restrictions on use, easements,

encumbrances, interests, mortgages, caveats, leases, rights and notifications affecting the

Property other than those notified to the Department prior to:

(i) if clause 7 applies, the date on which the Acquisition Agreement in respect of the

Property is entered into; or

(ii) if clause 7 does not apply, the Date of this Agreement;

the whole of the improvements on the Property are within the title boundaries of the

Property and there are no encroachments by or upon the Property;

all necessary Approvals have been obtained in connection with the existing buildings and

improvements on the Property and in connection with any alterations or additions to such

buildings and improvements; and

the Designated Use of the Property is permitted by the currently applicable zoning of the

Property and the Participant has obtained, or will obtain, the necessary Approvals on

terms and conditions acceptable to the Department, from the Proper Authority to use the

Property for the Designated Use.

8.3 Details relating to the Property

On or before:

(i) if clause 7 applies, as soon as reasonably possible (and no later than 20 Business

Days) following the acquisition by the Participant of an interest in the Property; or

(ii) if clause 7 does not apply, the date specified in the Milestone Schedule, or, if no

date is specified, within 20 Business Days of the Date of this Agreement;

the Participant must provide details of its interest in the Property, including a title search of

the Property, confirming that the Participant is the registered proprietor of an interest in the

Property.

The Participant is not entitled to receive, and the Department is not obliged to pay, any

part of the Funds, and, if it has been paid Funds, no Funds are to be expended by the

Participant, unless and until the Participant has complied with clause 8.3(a).

8.4 Department rights

On and from the later of:

the Date of this Agreement; or

where the Department has approved the Participant's acquisition of an interest in a

Proposed Property in accordance with clause 7.4, the date the Participant becomes the

registered proprietor of an interest in the Property,

the Participant irrevocably:

charges its rights, title and interest in and to the Property and the Works in favour of the

Department;

agrees that the Department has the right to register and maintain a caveat against the title

of the Property until such time as the conditions imposed under this Agreement have been

fully satisfied or discharged; and

agrees to sign all consents, as required by the Department to the lodgement of caveats

against the title of the Property in the form required by the Department from time to time to

prevent the lapsing, or withdrawal, of any caveat.

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9. Security

Note to Applicants: This clause 9 sets out the Department's minimum anticipated security

requirements which vary depending on the total grant amount and the proportion of grant funding

being provided by the Department relative to the total funding required for the Project. These

requirements will be considered further by the Department in light of potential grant recipients'

grant applications, including with reference to the total grant amount and financial viability of the

potential grant recipient.

The Department anticipates deleting clause 9 in full (and inserting 'Not Used') where the value of

the Funds are less than $1 million (GST exclusive).

[Note to Applicants: Clause 9.1 describes the Department's anticipated security requirements

where the total grant amount is $1 million or more and the Department contribution is <50 per cent

of the total project costs. In these circumstances, clauses 9.2 and 9.3 will be deleted.]

9.1 Securities generally

Without in any way limiting or affecting the Participant's obligations or the Department's

rights under this Agreement or otherwise at Law, the Participant irrevocably agrees:

(i) to grant to the Department a restrictive covenant on the title of the Property, on

terms acceptable to the Department, until expiry of the Designated Use Period;

and

(ii) to do all things reasonably required by the Department relating to the grant,

lodgement and registration of a restrictive covenant on the title of the Property in

the form required by the Department from time to time, including signing

documents.

During the Project Period, the details of any finance obtained by the Participant in respect

of the Property or the Works, including the amount, any repayments of principal or interest

and the details of the lender, must be set out in the Project Budget.

[Note to Applicants: Clause 9.2 describes the Department's anticipated security requirements

where the value of the Funds is $1 million or more and the Department's contribution is 50 per

cent or more of the total project costs. In these circumstances, clause 9.1 will be deleted.]

9.2 Securities generally

Without in any way limiting or affecting the Participant's obligations or the Department's

rights under this Agreement or otherwise at Law, the Participant irrevocably agrees:

(i) to grant to the Department a first registered mortgage over the Participant's

interest in the Property for the duration of the Project Period;

(ii) to grant to the Department a restrictive covenant on the title of the Property, on

terms acceptable to the Department, until expiry of the Designated Use Period;

and

(iii) to do all things reasonably required by the Department relating to the grant,

lodgement and registration of a restrictive covenant on the title of the Property in

the form required by the Department from time to time, including signing

documents.

During the Project Period, the Participant must not obtain finance, or further finance

(including increasing the amount of borrowings secured under an existing loan approved

by the Department), from a lender unless it has requested and obtained the Department's

written approval.

If the Participant obtains the Department's written approval to obtain finance from a lender

in accordance with clause 9.2(b), the Parties agree to vary this Agreement and enter into

any other agreement (including with a lender) so that:

(i) the Participant agrees to grant to the lender a first ranking mortgage over only that

part of the Property that is to be mortgaged in favour of the lender;

(ii) the Department agrees, subject to clause 9.2(c)(i), to surrender its priority as a first

mortgagee over only that part of the Property that is to be mortgaged in favour of

the lender, and become a second ranking mortgagee of that part of the Property;

23

(iii) the loan money advanced by the lender to the Participant is recognised as taking

priority over any moneys payable to the Department to the extent provided for

above under this Agreement; and

(iv) the priority of the lender under the first ranking mortgage will be limited in amount

and by condition as detailed in clause 9.2(d).

Where the Participant obtains the Department's written approval to obtain finance from a

lender in accordance with clause 9.2(b):

(i) the Participant must obtain the finance on terms satisfactory to the Department;

(ii) the details of the finance, including the amount, any repayments of principal or

interests and the details of the lender, must be set out in an amended Project

Budget approved by the Department in writing;

(iii) the Participant must enter into a priority agreement (Deed of Priority) with the

Department and the lender, which is satisfactory to the Department and under

which the lender recognises the Department's rights under this Agreement and

recognises the loan money advanced by the lender to the Participant has priority

over any moneys payable to the Department under this Agreement.

The Deed of Priority must contain provisions requiring:

(i) that the lender not to Dispose of the Property without first obtaining the

Department's consent in writing;

(ii) each party not to Dispose of its interest in the Property without first causing the

party to whom the interest is being disposed (Assignee) to enter into a deed with

each other party to the Deed of Priority by which the Assignee undertakes to be

bound by the provisions of the Deed of Priority insofar as they relate to the party

Disposing the interest to the Assignee; and

(iii) the lender not to provide any additional finance to the Participant without the prior

approval in writing of the Department.

[Note to Applicants: The following clause 9.3 will be retained in all agreements, provided the value

of the Funds is $1 million or more.]

9.3 No encumbrances

The Participant must not permit, create or grant, or enter into any agreement to permit,

create or grant, any restrictive covenants, restriction on use, easements, encumbrances,

interests, mortgages, caveats, leases or rights affecting the Property or the Participant's

interest in the Property after the Date of this Agreement, without first obtaining the written

consent of the Department.

The Department must not unreasonably withhold or delay its consent to a matter referred

to in clause 9.3(a).

10. Designated Use

10.1 Participant undertaking

The Participant undertakes:

for the Designated Use Period:

(i) to use the Property and the Works, or to ensure the Property and the Works are

used, for the Designated Use;

(ii) except in the case of an Unforeseen Event, to ensure the Property and the Works

are not left unused or unoccupied for a period in excess of four weeks without first

obtaining the written consent of the Department; and

(iii) not to use the Property or the Works, or permit the Property or the Works to be

used, for any purpose other than the Designated Use; and

at all times during the Project Period and until expiry of the Designated Use Period:

24

(i) to safeguard the Property and the Works against loss, damage and unauthorised

use;

(ii) to maintain the Property and the Works in good condition;

(iii) to reinstate the Property and the Works if they are damaged or destroyed; and

(iv) not to grant or Dispose of any interest in the Property, or any part of the Property,

without first:

(A) obtaining the Department's consent in writing (such consent may be

withheld at the Department's discretion); and

(B) requiring the purchaser, transferee, lessee, licensee, mortgagee, chargee

or other disponee, to enter into a deed of covenant with the Department,

on terms acceptable to the Department under which the purchaser,

transferee, lessee, licensee, mortgagee, chargee or other disponee

covenants in favour of the Department to use the Property and the Works

for the Designated Use until the expiry of the Designated Use Period.

10.2 Participant to repay

If within the Designated Use Period, the Department is satisfied on reasonable grounds

that the Participant has failed to comply with any of its obligations under clause 10.1, the

Department may by written notice to the Participant require the Participant to repay to the

Department the relevant amount calculated in accordance with Item 10 of Schedule 1. The

Participant must pay to the Department the amount set out in the notice, within 20

Business Days of the date of the Department's notice. If the Participant fails to make

payment within 20 Business Days, the Department may recover the amount specified in

its notice as a debt due from the Participant.

The Participant acknowledges and agrees that:

(i) the amounts payable by the Participant under clause 10.2(a) represent a genuine

and reasonable pre-estimate of the loss to the Department; and

(ii) the Participant releases the Department from all claims arising out of or in

connection with the Department's rights under clause 10.2(a).

10.3 Industry accreditation standards

The Participant must take all reasonable steps to ensure that any services provided during the

Designated Use Period meet all relevant industry accreditation standards and any requirements to

be registered and licensed.

11. Specialist Services

11.1 General

During the Designated Use Period, the Participant must:

maintain an arrangement with the Specialist Service Provider specified in Item 2.6 of

Schedule 1 or other an Specialist Service Provider approved by the Department in writing

from time to time; and

without limiting clause 32.1, comply with, and ensure its Personnel (including any

Specialist Service Provider) comply with the requirements of clauses 11.2 and 11.3.

11.2 Vulnerable persons

In this clause 11.2:

(i) Criminal or Court Record means any record of any Other Offence;

(ii) Other Offence means, in relation to a person, a conviction, finding of guilt, on-the-

spot fine for, or court order relating to:

(A) an apprehended violence or protection order made against the person;

25

(B) the consumption, dealing in, possession or handling of alcohol, a

prohibited drug, narcotic or other prohibited substance;

(C) violence against another person or the injury, but excluding the death, of

another person; or

(D) an attempt to commit a crime or offence, or to engage in any conduct or

activity, described in paragraphs (A) to (C);

(iii) Police Check means a formal inquiry made to the relevant police authority in each

State or Territory and designed to obtain details of an individual’s criminal

conviction or a finding of guilt in all places (within and outside Australia) that the

Participant know the person has resided in;

(iv) Serious Offence means:

(A) a crime or offence involving the death of a person;

(B) a sex-related offence or a crime, including sexual assault (whether against

an adult or child); child pornography, or an indecent act involving a child;

(C) fraud, money laundering, insider dealing or any other financial offence or

crime, including those under legislation relating to companies, banking,

insurance or other financial services; or

(D) an attempt to commit a crime or offence described in (A) to (C);

(v) Serious Record means a conviction or any finding of guilt regarding a Serious

Offence; and

(vi) Vulnerable Person means an individual aged 18 years and above who is or may

be unable to take care of themselves, or is unable to protect themselves against

harm or exploitation for any reason, including age, physical or mental illness,

trauma or disability, pregnancy, the influence, or past or existing use, of alcohol,

drugs or substances or any other reason.

Before any person commences work on any part of the Specialist Services that involves

working or contact with a Vulnerable Person, the Participant must:

(i) obtain a Police Check for that person;

(ii) confirm that the person is not prohibited by any law from being engaged in a

capacity where they may have contact with a Vulnerable Person;

(iii) comply with all State, Territory or Commonwealth laws relating the employment or

engagement of persons in any capacity where they may have contact with a

Vulnerable Person; and

(iv) ensure that the person holds all licences or permits for the capacity in which they

are to be engaged, including any specified in the Grant Details, and the Participant

must ensure that Police Checks and any licences or permits obtained in

accordance with this clause 11.2 remain current for the duration of their

involvement in the Specialist Services.

The Participant must ensure that a person does not perform work on any part of the

Specialist Services that involves working or contact with a Vulnerable Person if a Police

Check indicates that the person at any time has:

(i) a Serious Record; or

(ii) a Criminal or Court Record and the Participant has not conducted a risk

assessment and determined that any risk is acceptable.

In undertaking a risk assessment under clause 11.2(c), the Participant must have regard

to:

(i) the nature and circumstances of the offence(s) on the person’s Criminal or Court

Record and whether the charge or conviction involved Vulnerable Persons;

(ii) whether the person’s Criminal or Court Record is directly relevant to, or

reasonably likely to impair the person’s ability to perform, the role that the person

will, or is likely to, perform in relation to the Specialist Services;

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(iii) the length of time that has passed since the person’s charge or conviction and his

or her record since that time;

(iv) the circumstances in which the person will, or is likely to, have contact with a

Vulnerable Person as part of the Specialist Services;

(v) any other relevant matter,

and must ensure it fully documents the conduct and outcome of the risk assessment.

The Participant agrees to notify the Department of any risk assessment it conducts under

this clause and agrees to provide the Department with copies of any relevant

documentation on request.

If during the term a person involved in performing work on any part of the Specialist

Services that involves working or contact with a Vulnerable Person is:

(i) charged with a Serious Offence or Other Offence, the Participant must

immediately notify the Department; or

(ii) convicted of a Serious Offence, the Participant must immediately notify the

Department and ensure that that person does not, from the date of the conviction,

perform any work or role relating to the Specialist Services.

11.3 Child Safety

In this clause 11.3:

(i) Child means an individual(s) under the age of 18 years and Children has a

similar meaning;

(ii) Child-Related Personnel means officers, employees, contractors (including

subcontractors), agents and volunteers of the Participant involved with the

Specialist Services who as part of that involvement may interact with Children;

(iii) Legislation means a provision of a statute or subordinate legislation of the

Commonwealth, or of a State, Territory or local authority;

(iv) National Principles for Child Safe Organisations means the National Principles

for Child Safe Organisations, which have been endorsed in draft form by the

Commonwealth Government (available at:

https://www.humanrights.gov.au/national-principles-child-safe-organisations) and

subsequently, from the time of their endorsement by the Council of Australian

Governments, the final National Principles for Child Safe Organisations as

published by the Australian Government;

(v) Relevant Legislation means Legislation in force in any jurisdiction where any part

of the Specialist Services may be carried out;

(vi) Working With Children Check or WWCC means the process in place pursuant to

Relevant Legislation to screen an individual for fitness to work with Children.

The Participant must:

(i) comply with all Relevant Legislation relating to the employment or engagement of

Child-Related Personnel in relation to the Specialist Services, including all

necessary Working With Children Checks however described; and

(ii) ensure that Working With Children Checks obtained in accordance with this clause

11.3(b) remain current and that all Child-Related Personnel continue to comply

with all Relevant Legislation for the duration of their involvement in the Specialist

Services.

The Participant agrees in relation to the Specialist Services to:

(i) implement the National Principles for Child Safe Organisations;

(ii) ensure that all Child-Related Personnel implement the National Principles for Child

Safe Organisations;

(iii) complete and update, at least annually, a risk assessment to identify the level of

responsibility for Children and the level of risk of harm or abuse to Children;

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(iv) put into place and update, at least annually, an appropriate risk management

strategy to manage risks identified through the risk assessment required by this

clause 11.3(c);

(v) provide training and establish a compliance regime to ensure that all Child-Related

Personnel are aware of, and comply with:

(A) the National Principles for Child Safe Organisations;

(B) the Participant’s risk management strategy required by this clause 11.3(c);

(C) Relevant Legislation relating to requirements for working with Children,

including Working With Children Checks;

(D) Relevant Legislation relating to mandatory reporting of suspected child

abuse or neglect, however described; and

(vi) provide the Department with an annual statement of compliance with clauses

11.3(b) and 11.3(c), in such form as may be specified by the Department.

With reasonable notice to the Participant, the Department may conduct a review of the

Participant’s compliance with this clause 11.3.

The Participant agrees to:

(i) notify the Department of any failure to comply with this clause 11.3;

(ii) co-operate with the Department in any review conducted by the Department of the

Participant’s implementation of the National Principles for Child Safe

Organisations or compliance with this clause 11.3; and

(iii) promptly, and at the Participant’s cost, take such action as is necessary to rectify,

to the Department’s satisfaction, any failure to implement the National Principles

for Child Safe Organisations or any other failure to comply with this clause 11.3.

Part D – Funding and Other Contributions

12. Funding for the Project

12.1 Payment of the Funds

Subject to Parliamentary appropriation and to the provisions of this Agreement, the

Department agrees to pay to the Participant the amount of the Funds specified in Item 6.1

of Schedule 1 in accordance with Item 6.2 of Schedule 1, once the Participant has:

(i) provided to the Department's satisfaction:

(A) all deliverables set out in the Milestones Schedule for the relevant

Milestone; and

(B) the Reports required by clause 15;

(ii) certified to the Department in the form of the Payment Certificate set out at

Schedule 3 that:

(A) all work the Participant paid for using the Funds was properly required for

the Project;

(B) the amounts of each payment made using the Funds represent the

reasonable value of the work carried out or to be carried out (the value of

work to be considered in light of the relevant industry);

(C) no Conflicts arose in making payments for work using the Funds that the

Participant did not, or has not, declared to the Department; and

(D) no Conflicts arose in entering into any arrangements with Contractors (as

such term is defined in clause 5.1(a)).

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Despite any other provision of this Agreement:

(i) the Department may, at its discretion, defer, reduce or not make a payment of

Funds;

(ii) the Participant is not entitled to receive, and the Department is not obliged to pay,

any amount under this Agreement; and

(iii) if the Participant has received any Funds, the Participant is not entitled to spend

those Funds,

if at any time:

(iv) the Department has insufficient Program funding available at the time the payment

is due to the Participant;

(v) the Department has become entitled to terminate this Agreement under

clause 23.1;

(vi) the Department forms the reasonable opinion that the full payment is not properly

required by the Participant to carry out the Project or because of Project surpluses

or underspends;

(vii) before the commencement of the Works, the Participant has not complied, to the

reasonable satisfaction of the Department, with its obligations to:

(A) provide security as required by clause 9; or

(B) take out the insurances required by clause 22.2; or

(viii) the Participant has not complied with any provision of this Agreement which

provides that the Participant will not be entitled to receive any Funds until that

obligation has been complied with.

12.2 Participant to submit invoices

This clause 12.2 only applies where the Department notifies the Participant that it is

unable to issue a recipient created tax invoice in accordance with clause 34.5.

The Participant must submit invoices for payment of the Funds for the Project in the

manner specified in Item 6.3 of Schedule 1. The amount of the invoices will not exceed

the amount of Funds properly required by the Participant for its use in relation to the

performance of this Agreement up to the date of the next invoice.

12.3 Use of Funds

Funds provided under this Agreement:

must only be used for the performance of the Project and performing this Agreement;

must only be applied in accordance with the Project Budget;

are not to be applied towards administrative and other general costs of the Participant that

are not directly associated with the performance of the Project (including the Participant’s

administrative costs in administering this Agreement) unless any such costs are expressly

included in the Project Budget; and

must not, unless the prior written approval of the Department has been obtained, be used

in a manner which is inconsistent with the Project Budget.

12.4 Maximum amount of Funds

The funding to be contributed by the Department will not exceed the maximum amount of Funds

specified in Item 6.1 of Schedule 1. The Department accepts no liability for:

any debts incurred by the Participant;

any monies owing by the Participant to its officers, employees, agents, contractors or

subcontractors;

any budget or cost overruns of the Works, the Property or the Project; or

insufficient monies to complete the Works or the Project (including purchasing the

Property).

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12.5 Sufficiency of amounts

The Participant warrants that the Funds together with all Other Contributions made or received by

the Participant in relation to the Project, will be sufficient to ensure the due and proper completion

of the Works and the Participant's obligations under this Agreement.

12.6 SOP Act

This clause 12.6 only applies if, and to the extent that, the SOP Act applies to this

Agreement.

Capitalised terms in this clause 12.6 which are not otherwise defined in this Agreement

have the meaning given by the SOP Act.

Business Day in this clause 12.6 has the same meaning as in the SOP Act.

The Participant acknowledges and agrees that:

(i) the Reference Dates for the purpose of this Agreement are each date on which

the Participant achieves a Milestone as specified in the Milestone Schedule;

(ii) the Department must within 10 Business Days of receipt of a Payment Claim:

(A) determine the amount of the Participant's entitlement being the

Department's assessment of the Funds then due and payable minus the

amount of any debt due to the Department, or any claim by the

Department against the Participant or any amount which the Department

may otherwise be entitled to set off, withhold or deduct; and

(B) provide a Payment Schedule which:

(I) identifies the Payment Claim to which the Payment Schedule

relates;

(II) indicates the amount of the payment the Department proposes to

make; and

(III) if the amount the Department proposes to pay is less than the

claimed amount, indicates why the amount proposed to be paid is

less and (if it is less because the Department is withholding

payment for any reason), the Department's reasons for withholding

payment;

(iii) Progress Payments under this agreement become due and payable in accordance

with Item 6.2 of Schedule 1; and

(iv) the value of work carried out under the Agreement is to be determined in

accordance with Item 6.2 of Schedule 1, subject to Item 6.1(a) of Schedule 1.

13. Other Contributions The Participant must:

(i) within 20 Business Days after the Date of this Agreement, provide to the

Department satisfactory written evidence that the Other Contributions set out in

Item 6.4 of Schedule 1 will be provided, including the person or entity providing the

contribution, the nature and value of the contribution, the due dates for each of

these contributions and the terms and conditions that apply.

(ii) if requested by the Department, promptly provide to the Department copies of any

written arrangements entered into, or proposed to be entered into, in respect of

the Other Contributions;

(iii) ensure that the terms on which any Other Contributions are provided to the

Participant for, or in connection with, the Project are not inconsistent with the

terms of this Agreement and do not in any way limit or affect the Participant's

ability to comply strictly with its obligations, or the Department's ability to exercise

its rights, under this Agreement; and

(iv) use the Other Contributions to undertake the Project.

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If the Other Contributions are not provided or used in accordance with this clause, the

Department may:

(i) suspend payment of the Funds until the Other Contributions are provided; or

(ii) terminate this Agreement in accordance with clause 23.1.

Part E – Managing the Agreement

14. Records

14.1 Records and accounts

The Participant must keep financial accounts and other records that:

detail and document the conduct and management of the Project (including relevant

invoices);

identify the receipt and expenditure of the Funds and any Other Contributions separately

within the Participant's accounts and records so that at all times the Funds are identifiable;

and

enable all receipts and payments related to the Project to be identified and reported.

14.2 Participant must keep records

Without limiting clause 14.1, the Participant must keep comprehensive written records of the

conduct of the Project including progress against the Milestones and the extent to which the

Project is achieving the Aim of the Project and the Program Objectives.

14.3 Financial records

Without limiting clause 14.1, the Participant must keep financial records relating to the Project so

as to enable:

all revenue and expenditure related to the Project to be identified in the Participant’s

accounts;

the preparation of financial statements in accordance with Australian Accounting

Standards; and

the Audit of these records.

14.4 Provision of records to the Department

The Participant must:

produce reports (including Reports), information and other Material produced under or in

connection with this Agreement and otherwise as reasonably required by the Department;

and

provide all reports (including Reports), information and other material to the Department in

accordance with the timeframes specified in this Agreement and otherwise promptly upon

demand.

14.5 Retention of records and information

The Participant must retain its financial records and other information referred to in this clause 14

for a period of 7 years after its creation or such longer period as may be required by Law.

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15. Reports

15.1 Reports

The Participant must provide all Reports:

at the times; and

in the format specified by the Department (if any); and

including the content specified in the Item 5 of Schedule 1.

15.2 Reporting during the Project Period

During the Project Period, the Participant must provide to the Department:

Progress Reports in accordance with Item 5.1 of Schedule 1; and

where applicable, notification in accordance with clause 4.1(c)(i).

15.3 Acquittal Report

During the Project Period, the Participant must provide Acquittal Reports in accordance with Item

5.2 of Schedule 1.

15.4 Final Report

The Participant must provide to the Department the Final Report in accordance with in

Item 5.3 of Schedule 1.

The Final Report must include evidence of completion of all applicable deliverables and/or

the documents set out in the Milestone Schedule for Milestone 4.

15.5 Designated Use Reports

During the Designated Use Period, the Participant must provide Designated Use Reports

in accordance with Item 5.3 of Schedule 1.

A report provided by the Participant under clause 15.5(a) does not limit the Participant's

obligations, or the Department's rights under clause 10.

15.6 Program Report

The Participant must participate, at its own cost and as reasonably required by the Department, in

studies, evaluations and other activities intended to analyse the success of each Project in

achieving the Project Objectives and the Aim of the Project, on terms required by the Department.

Such participation may, where required by the Department, include:

allowing third parties access to the Property to undertake analysis and evaluation of the

Program and the Project; and

making reports (including Reports), records and other information available to third parties

for the purposes of evaluation and analysis.

15.7 Other Reports

The Department may at any time require the Participant to provide reports and other

information in addition to the reports and information required under clauses 15.1 to 15.5

(Additional Reports).

Where the Department requires an Additional Report, it will issue a direction in writing to

the Participant requiring the Participant to provide an Additional Report and specifying the

Department's requirements in relation to the:

(i) format;

(ii) content;

(iii) information and substantiating documentation to be included; and

(iv) auditing or certification required (if any),

for that Additional Report.

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The Participant must, at its cost, comply with a direction of the Department under this

clause 15.7 by providing the requested Additional Report:

(i) within 20 Business Days of receiving the Department's direction; or

(ii) within such longer period (if any) as the Department may allow.

16. Corrective action The Participant must immediately notify the Department of a potential failure or failure to

meet a Milestone or perform the Project and achieve the Program Objectives and the Aim

of the Project (in this clause 16, a Problem).

If the Participant notifies the Department of a Problem, or if the Department notifies the

Participant of a Problem, then:

(i) the Participant must, if requested by the Department, within 7 days prepare and

submit to the Department a report identifying:

(A) the nature and extent of the Problem;

(B) the consequences of the Problem and in particular the Milestones and

Program Objectives and the Aim of the Project that are likely to be

affected; and

(C) steps the Participant will take to rectify the Problem,

(the Corrective Action Plan).

(ii) the Department may comment on the Corrective Action Plan and the Participant

must:

(A) amend the Corrective Action Plan to take account of the Department's

comments, including the steps proposed to be taken by the Participant and

the timeframe in which the steps are to occur; and

(B) resubmit the Corrective Action Plan to the Department within 10 Business

Days.

(iii) If a Corrective Action Plan is rejected and resubmitted, the process described in

this clause 16(c) will apply to the resubmitted Corrective Action Plan.

If the Department approves a Corrective Action Plan, the Participant must complete all of

the steps and activities in the approved Corrective Action Plan within the timeframe

specified in the approved Corrective Action Plan.

If the Department approves a Corrective Action Plan, the approved Corrective Action Plan

will:

(i) not operate as a waiver of the obligations that the Participant may have under this

Agreement; and

(ii) not limit the Department's rights or remedies it may have against the Participant in

connection with the Problem (for example, to claim damages for breach or

terminate this Agreement).

If the Participant does not submit a Corrective Action Plan that the Department is prepared

to approve, or if the Participant does not comply with the requirements of any approved

Corrective Action Plan, the Department may immediately terminate this Agreement.

17. Liaison The Participant must liaise with and report to the Funding Arrangement Manager in

relation to the Project, and as reasonably required by the Funding Arrangement Manager

for the purposes of this Agreement.

Upon request, the Participant must within the time-frame specified in the request, or

promptly if no time-frame is specified in the request, provide all information in relation to

the Project or the Participant as requested by the Department for the purposes of this

Agreement, including for monitoring and evaluation purposes.

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The Participant must:

(i) provide accurate, informative and timely advice to the Department on any matters

that could impact on the Aim of the Project and the Program Objectives; and

(ii) provide the Department with draft copies of all intended public communication

materials as follows:

(A) printed materials (including data reports), at least 4 weeks prior to

publication; and

(B) media releases with at least 2 Business Days' notice.

18. Access to premises and materials The Participant must give the Auditor-General, the Privacy Commissioner, the

Ombudsman, the Information Commissioner and the Freedom of Information

Commissioner and their respective delegates, and persons authorised in writing by the

Department (referred to in this clause 18 collectively as ‘those permitted’) access to

premises at which records and Materials associated with this Agreement are stored or

work in connection with the Project is undertaken.

The Participant must give to those permitted access to inspect and copy Materials,

however stored, in the custody or under the control of the Participant, its employees,

agents or subcontractors, for the purposes associated with this Agreement or any review

of performance under this Agreement. The Participant must also give those permitted

access to any Assets, wherever they may be located, and reasonable access to the

Department Personnel for the same purpose.

The rights referred to in clause 18(a) are, wherever practicable, subject to:

(i) the provision of reasonable prior notice by the Department (except where the

Department believes that there is an actual or apprehended breach of the Law);

(ii) access being sought during reasonable times (except where the Department

believes that there is an actual or apprehended breach of the Law); and

(iii) the Participant’s reasonable security procedures.

The Participant agrees to provide all assistance reasonably requested by the Department

in respect of any inquiry into or concerning the Project, the Works, the Program or this

Agreement. For these purposes an inquiry includes any administrative or statutory review,

audit or inquiry (whether within or external to the Department), any request for information

directed to the Department, and any inquiry conducted by Parliament or any Parliamentary

committee.

The Participant must provide access to its computer hardware and software and

equipment to the extent necessary for the Department to exercise its rights under this

clause, and provide the Department with any reasonable assistance requested by the

Department to use that hardware and software.

The Participant must ensure that any subcontract entered into for the purposes of this

Agreement contains an equivalent clause allowing those permitted to have access as

specified in this clause 18.

34

Nothing in this Agreement limits or restricts in any way any duly authorised function,

power, right or entitlement of the Auditor-General, the Privacy Commissioner, the

Ombudsman, the Information Commissioner or the Freedom of Information

Commissioner, or their respective delegates. The rights of the Department under this

Agreement are in addition to any other duly authorised power, right or entitlement of the

Auditor-General, the Privacy Commissioner, the Ombudsman, the Information

Commissioner or the Freedom of Information Commissioner or their respective delegates.

Part F – Managing the Project

19. Assets

19.1 Purchase of Assets

The Participant must not use Funds towards the purchase of Assets unless the Asset is identified

in the Project Budget and is consistent with the Aim of the Project and Program Objectives.

19.2 Use of Assets

The Participant must not use Assets for any purpose other than the performance of the

Project and the Designated Use unless it has obtained the prior written approval of the

Department.

The Participant must:

(i) not Dispose of any Asset, or deal with or use any Asset other than in accordance

with this Agreement, without having obtained the prior written approval of the

Department;

(ii) hold all Assets securely and safeguard them against theft, loss, damage or

unauthorised use;

(iii) maintain all Assets in good working order;

(iv) maintain all appropriate insurances in respect of any Assets;

(v) be fully responsible for, and bear all risks arising in relation to, the use or Disposal

of any Asset;

(vi) maintain a register of all Assets, recording the date of purchase or lease, the

purchase or lease price, Asset description including serial number, Asset location,

the proportion of the Funds used to create or acquire the Asset, the Depreciated

value of the Asset and (where approved under clause 19.2(b)(i)) details of

Disposal of the Asset, including the sale price; and

(vii) as and when requested, provide copies of the register of Assets to the

Department.

19.3 Disposing an Asset

During the Agreement Period, where the Depreciated value of an Asset is $50,000 or

more at the time of the proposed Disposal, the Participant must:

(i) obtain prior agreement in writing from the Department before Disposing of that

Asset; and

(ii) at the option of the Department:

(A) pay to the Department within 20 Business Days of the date of the

Disposal, an amount equal to the proportion of the value of the Asset

following Depreciation that is equivalent to the proportion of the purchase

price of the Asset that was funded from the Funds;

(B) pay to the Department within 20 Business Days of the date of the

Disposal, the proceeds of the Disposal, less an amount equal to the sum

of the Participant’s proportionate contribution to the purchase price of the

35

Asset and the Participant’s reasonable costs of sale or Disposal of the

Asset; or

(C) use the amount specified in clauses 19.3(a)(ii)(A) or 19.3(a)(ii)(B) above

for a purpose approved in writing by the Department.

For clarity, the Participant does not need to obtain the Department's prior agreement to

the Disposal of an Asset when the Depreciated value of that Asset is less than $50,000.

19.4 Asset depreciation

If, on the expiration or early termination of this Agreement, an Asset has not been fully

Depreciated the Participant must, at the option of the Department:

(i) pay to the Department within 20 Business Days after expiry or early termination of

this Agreement, an amount equal to the proportion of the value of the Asset

following Depreciation that is equivalent to the proportion of the purchase price of

the Asset that was funded from the Funds;

(ii) sell the Asset for the best price reasonably obtainable and pay to the Department

within 20 Business Days of the date of sale the proceeds of sale, less an amount

equal to the sum of the Participant’s proportionate contribution to the purchase

price of the Asset and the Participant’s reasonable costs of sale or Disposal of the

Asset; or

(iii) use the Asset on such terms and conditions as may be approved in writing by the

Department.

If the Participant fails to make a payment or use the amount as required by clauses 19.3

or 19.4:

(i) the Participant must pay the Department Interest on the relevant amount from the

date it was due, for the period it remains unpaid; and

(ii) the relevant amount, and Interest owed under this clause 19.4(b) will be

recoverable by the Department as a debt due to the Department from the

Participant.

20. Step-in rights

Note to Applicants: It is anticipated that this clause will only be included where the value of the

grant is $1 million or more, the Works involves a new build and the Department contribution is 50

per cent or more of the total project costs.

In all other circumstances, it is anticipated that clause 20 will be deleted and 'Not Used' will be

inserted.

20.1 Application of this clause

This clause 20 only applies if the Department has obtained all relevant Approvals (including any

approval required in accordance with the Lands Acquisition Act 1989 (Cth)) required for the

Department to exercise the rights conferred on the Department under this clause 20.

20.2 Circumstances in which the Department can step-in

Subject to any applicable statutory stay on the exercise of rights, including sections 415D, 434J

and 451E of the Corporations Act (as applicable), without prejudice to any other right or remedy

that the Department may have under this Agreement, any Law or otherwise, if, in the

Department's opinion, the Participant has breached, or is in breach of, any obligation under this

Agreement, the Department may (either itself or through a nominee of the Department):

step-in and take control of management of part or the whole of the Project, including by

performing any or all of the Participant’s obligations under this Agreement which relate to

the Project; or

make any other arrangements considered necessary or desirable by the Department to

complete all or part of the Project or to otherwise ensure the completion of all of the

Participant's obligations under this Agreement which relate to the Project.

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20.3 Participant's obligations during step-in

The Participant must do everything necessary or desirable to give effect to the Department's

rights under clause 20.2, in accordance with the directions of the Department, including:

novating or assigning to the Department or its nominee any contracts with subcontractors

or other third parties relating to the Project;

novating this Agreement to a party nominated by the Department;

authorising the Department or its nominee to deal with all Funds held by the Participant,

including authorising the Department or its nominee to act as a signatory to the

Participant's Bank account in which Funds are held, or to be held;

assigning to the Department or a party nominated by the Department, any leases or

licences relating to the Project that are, in the Department's opinion, required for the due

and proper completion of the Project;

providing to the Department or a party nominated by the Department, unfettered access to

the Property and any land, buildings or improvements on which, or in which, the Property

is located for the purposes of exercising rights under clause 20.2;

without limiting clause 20.3(e), granting an irrevocable non-exclusive licence to the

Department, or to a party nominated by the Department to:

(i) pass or repass over common areas in the Property or as is required for ready

access to the Property, and that right shall extend to tenants and guests of the

Works;

(ii) have full and free access to all utilities and other services in the Property (or in the

building, facility or improvement within which the Property is located) as may be

required for the Designated Use; and

(iii) have full and free access to car parking on the Property (or on or adjacent to the

land in which the Property is located) as may be required from time to time; and

at the Department's discretion, repaying to the Department or its nominee, within the

timeframes specified by the Department or, if no timeframes are specified, promptly, all

Uncommitted Funds (in whole or in part) identified by the Department.

20.4 Charges and costs

Without limiting or affecting the Department's rights under this Agreement, the Department may

recover all its costs associated with exercising its rights under this clause 20 (including costs

associated with recovering any amount of Uncommitted Funds from the Participant) as a debt due

from the Participant.

20.5 No liability

The Department will not be liable in any way to the Participant, its officers, employees, agents,

subcontractors or any other third party in relation to any act or omission arising out of or in

connection with the exercise of the Department's rights under this clause 20.

20.6 Participant indemnity

The Participant releases the Department from and indemnifies and will continue to

indemnify the Department and its subcontractors and Personnel from and against all:

(i) loss, damage, costs and expenses suffered or incurred by the Department,

including as the result of any claim made in relation to:

(A) loss of or damage to third party property; or

(B) the injury, illness or death of a third party;

(ii) loss of, or damage to, Department property; or

(iii) loss, damage, costs and expenses suffered or incurred by the Department in

dealing with any claim against the Department, including legal costs and expenses

on a solicitor/own client basis and the cost of time spent, resources used, or

disbursements paid by the Department;

37

arising out of or in connection with the exercise of the Department's rights under this

clause 20.

The Participant's liability to indemnify the Department under clause 20.6 will be reduced

proportionately to the extent that any negligent or unlawful act or omission of, or wilful

misconduct by, the Department, its subcontractors and Personnel contributed to the

relevant loss, damage, cost, expense or liability.

20.7 Step-out

On the Department ceasing to exercise any of its rights under clause 20.2 the Participant must as

soon as reasonably practicable recommence performance of those of the Participant's obligations

suspended pursuant to clause 20.2.

Part G – Risk management

21. Indemnities

21.1 Participant indemnity

The Participant indemnifies the Department and its Personnel from and against any:

(i) loss of, or damage to, property of the Department;

(ii) claims by any person in respect of personal injury or death;

(iii) claims by any person in respect of loss of, or damage to, any property; and

(iv) costs and expenses incurred including the cost of defending or settling any claim

referred to in clauses 21.1(a)(ii) or 21.1(a)(iii);

arising from:

(v) any infringement, or alleged infringement, of the Intellectual Property Rights of any

person, which occurred by reason of an act done by the Department in relation to

any part of the Project;

(vi) any actual, likely or threatened breach of the Participant's or subcontractor’s

obligations relating to Confidential Information or Personal Information;

(vii) without limiting any other paragraphs of this clause 21.1, any breach of this

Agreement by the Participant;

(viii) any negligence on the part of the Participant, its Personnel or subcontractors;

(ix) any wrongful or unlawful act or omission on the part of the Participant, its

Personnel or subcontractors; or

(x) any breach by the Participant of its warranties under this Agreement.

The Participant's liability to indemnify those indemnified under clause 21.1(a) will be

reduced proportionately to the extent that any negligent act or omission of those

indemnified contributed to the relevant liability, loss, damage or expense.

21.2 Department's rights

The right of the Department to be indemnified under this clause 21 is in addition to, and not

exclusive of, any other right, power, or remedy provided by Law.

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22. Insurance

22.1 Insurance warranty

The Participant warrants that it has and its Contractors have taken out or will take out, and will

maintain for the period specified in clauses 22.2, 22.3 or 22.4 as applicable, all appropriate types

and amounts of insurance to cover the Participant’s obligations under this Agreement, including

those which survive its expiration or early termination.

22.2 Insurance coverage

The Participant must take out or have taken out, and ensure that its Contractors take out, for the

period specified in clauses 22.3 and 22.4 (as the case may be):

on execution of this Agreement, workers compensation and public liability insurances as

specified in Item 9.1 of Schedule 1;

where:

(i) clause 7 applies, on acquisition of an interest in the Property; or

(ii) clause 7 does not apply, on execution of this Agreement,

the insurance specified in Item 9.2 of Schedule 1 and all other appropriate types and

amounts of insurance to cover the Participant's activities and obligations under or in

connection with this Agreement;

prior to commencement of the Works, all insurances as specified in Item 9.3 of Schedule 1

and all other appropriate types and amounts of insurance to cover the Participant's

activities and obligations under or in connection with this Agreement; and

prior to commencement of the Designated Use Period, all insurances as specified in

Item 9.4 of Schedule 1 and all other appropriate types and amounts of insurance to cover

the Participant's activities and obligations under or in connection with this Agreement.

22.3 Claims made policy

If the Participant or a Contractor takes out a ‘claims made policy’, which requires all claims and

any fact situation or circumstance that might result in a claim to be notified within the period of

insurance, the Participant must, and where relevant, ensure that the Contractor:

in the case of insurance taken out as required by clause 22.2(a) maintain the policy (or a

policy in like terms) during the Agreement Period and for a period of 7 years on and from

the expiry or the early termination of this Agreement;

in the case of insurance taken out as required by clause 22.2(b), maintain the policy (or a

policy in like terms) during the construction of the Works until Practical Completion and for

a period of 7 years on and from Practical Completion having occurred or the early

termination of this Agreement; and

in the case of insurance taken out as required by clause 22.2(d), maintain the policy (or a

policy in like terms) during the Designated Use Period and for a period of 7 years on and

from the expiry or the early termination of this Agreement.

22.4 Occurrence policy

If the Participant or a Contractor takes out an ‘occurrence’ policy, which requires the

circumstances to which a claim relates to occur during the period of insurance whilst the

notification of event can occur at any time subsequently, the Participant must, and, where

relevant, must ensure that the Contractor, maintain the policy:

in the case of insurance taken out pursuant to clause 22.2(a) during the Agreement

Period;

in the case of insurance taken out pursuant to clause 22.2(c), during the construction of

the Works until the date of achievement of Practical Completion; and

in the case of insurance taken out pursuant to clause 22.2(d), during the Designated Use

Period.

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22.5 Evidence

The Participant must, on request, promptly provide to the Department any relevant insurance

policies and certificates of currency for inspection.

22.6 Insurance proceeds

If during the Agreement Period:

the Works or the Property (or both as the case may be) are lost, damaged or destroyed by

a risk against which the Participant is required under this Agreement to be insured; and

the payment of insurance moneys under the relevant insurance policy has not been

refused in whole as a direct consequence of any act or omission of the Department in

breach of this Agreement,

then the Participant must:

claim and obtain payment of any insurance moneys to which it is entitled under the

relevant insurance policy in respect of the relevant loss, damage or destruction;

apply all relevant insurance proceeds in:

(i) if required by the Department, reinstating the Works or the Property (or both as the

case may be); or

(ii) otherwise, paying the Department:

(A) an amount calculated in accordance with Item 10 of Schedule 1; or

(B) where the insurance proceeds are less than the amount calculated in

accordance with Item 10 of Schedule 1, the total insurance proceeds.

Part H – Termination

23. Suspension and termination

23.1 Termination, suspension or reduction for cause

If:

(i) the Department does not accept the Draft Project Plan and Budget in accordance

with clause 3.2 on or before the date specified in Item 3.4 of Schedule 1;

(ii) clause 7 applies and the Participant fails to identify a suitable property acceptable

to the Department, in accordance with clause 7, for carrying out the Designated

Use, within the timeframe specified in Item 3.5 of Schedule 1;

(iii) the Participant fails to provide evidence of the Participant having an interest in of

the Property that is satisfactory to the Department within the timeframes specified

in clause 8.3(a);

(iv) the Participant does not commence the Works within the timeframe specified in

Item 3.1 of Schedule 1;

(v) the Participant fails to comply with any timeframe under this Agreement which is

stated to be of the essence;

(vi) the Participant fails to remedy to the satisfaction of the Department any material

breach of this Agreement (which in the opinion of the Department can be

remedied) within 10 Business Days after the date on which the Department issues

the Participant with a notice requiring the Participant to remedy the breach;

(vii) the Participant has regularly or persistently failed to meet any, some, or all

requirements of this Agreement, which failures have the cumulative effect of

constituting a material breach of this Agreement, whether or not the Department

has required the Participant to remedy a breach under clause 23.1(a)(vi);

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(viii) the Participant materially breaches this Agreement and in the reasonable opinion

of the Department the breach cannot be remedied;

(ix) the Department is satisfied on reasonable grounds that any statement,

representation or warranty made by the Participant is incorrect or incomplete in a

way which would have affected the original decision to approve the Funds for the

Project;

(x) the Department is satisfied on reasonable grounds that a report (including a

Report) given by the Participant is significantly misleading, or substantially

incomplete or inaccurate;

(xi) subject to any applicable statutory stay on the exercise of rights, including sections

415D, 434J and 451E of the Corporations Act (as applicable), an Insolvency Event

occurs with respect to the Participant;

(xii) the Participant fails to comply with any of the following provisions:

(A) clause 9 (Security);

(B) clause 11 (Specialist Services);

(C) clause 12.3 (Use of Funds);

(D) clause 25 (Intellectual Property Rights);

(E) clause 26 (Protection of Personal Information) ;

(F) clause 27 (Confidentiality);

(G) clause 37 (Fraud control);

(H) clause 38 (Warranties and representations); or

(I) clause 39.8 (Assignment);

(xiii) the Participant breaches any term or condition of any other funding agreement

(including a Related Agreement) between the Participant and the Department; or

(xiv) the Participant, by notice in writing given to the Department, withdraws from this

Agreement,

the Department may by written notice to the Participant, immediately require the

Participant to suspend dealing with the Funds, in whole or in part, in relation to the Project

or terminate this Agreement in its entirety (or both as the case may be).

(b) If, in the Department's opinion:

(i) the Participant has breached, or is in breach of, any material obligation under this

Agreement; and

(ii) the breach is capable of being remedied by the Participant,

the Department must not terminate this Agreement in accordance with clause 23.1(a)

without first:

(iii) giving the Participant notice of a Problem in accordance with clause 16(b); and

(iv) allowing the Participant a reasonable opportunity to comply with any approved

Corrective Action Plan relating to the Problem.

23.2 Termination, suspension or reduction for convenience

In addition to any other rights the Department has under this Agreement, the Department may, at

any time and its discretion, subject to any applicable statutory stay on the exercise of rights,

including sections 415D, 434J and 451E of the Corporations Act (as applicable), terminate this

Agreement, wholly or in part, or reduce the scope of this Agreement for any reason, or require the

Participant to immediately suspend dealings with the Funds, by providing a written termination

notice to the Participant specifying a termination date.

23.3 Consequences of termination, suspension or reduction for convenience

If the Department exercises its right to:

(i) terminate this Agreement;

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(ii) reduce the scope of this Agreement; or

(iii) require the Participant to immediately suspend dealings with the Funds,

in accordance with clause 23.2, the Department will only be liable for any reasonable

costs (excluding, without limitation, loss of prospective income or profits which relate to a

period after the date the termination, reduction in scope or suspension takes effect)

unavoidably incurred by the Participant prior to the date of termination, reduction in scope

or suspension, which are directly attributable to the termination, reduction in scope or

suspension.

The Department will not be liable to pay any amount in excess of the amount of Funds

remaining unpaid under this Agreement as at the date that the termination, reduction in

scope or suspension takes effect.

Except as provided in this clause 23.3, the Department will not be liable to the Participant

in any way for termination of this Agreement, reduction in scope or suspending dealings

with Funds, in accordance with clause 23.2.

23.4 Dealing with the Funds on termination

On termination of this Agreement, reduction in scope of this Agreement or for the duration

of any suspension of dealings with the Funds, the Participant must only deal with the

Funds in accordance with the directions of the Department and must cease all other

dealings with the Funds.

The Department may end the suspension of dealings with the Funds by written notice to

the Participant, subject to such preconditions (including variations to this Agreement)

which the Department may require.

Subject to clause 23.3, the Department will not be obliged to pay any part of the Funds to

the Participant after the termination of this Agreement or during any period of suspension

of dealings with the Funds.

23.5 No liability

Except as provided in clause 23.3, the Department will not come under any liability to the

Participant for termination of this Agreement in accordance with this clause.

23.6 Deemed termination for convenience

If a purported termination for cause by the Department under any of clause 23.1 is determined by

a competent authority not to be properly a termination for cause, then that termination by the

Department will be deemed to be a termination for convenience under clause 23.2, which

termination has effect from the date of the notice of termination referred to in clause 23.2.

24. Repayment of Funds

24.1 Remaining Funds

If:

on the expiry of the Project Period or on any earlier termination or reduction in scope of

this Agreement, any of the Funds:

(i) are Unspent; or

(ii) cannot, by reconciliation between the accounts and records maintained by the

Participant (as reported to the Department by the Participant in any of the financial

statements referred to in clause 14) and the Project Budget, be shown to the

reasonable satisfaction of the Department to have been spent or Committed in

accordance with this Agreement; or

at any time the Department forms the reasonable opinion that any Funds have been used,

spent or Committed by the Participant other than in accordance with this Agreement,

the Department may by written notice to the Participant:

42

require the Participant to repay that part of the Funds, and the Participant must repay to

the Department the amount set out in the notice, within 20 Business Days of receipt of the

notice;

deduct an equivalent amount from the Funds payable to the Participant pursuant to this

Agreement or from any other amounts payable to the Participant under any other

agreement with the Department; or

(e) require the Participant to use all or part of those Funds as directed by the Department.

24.2 Failure to repay the Funds

If the Participant fails to repay the Funds in accordance with a notice issued under clause 24.1(c)

or fails to use the Funds as directed under clause 24.1(e):

the Participant must pay the Department Interest on the amount set out in the notice from

the date it was due, for the period it remains unpaid; and

the amount set out in the notice, and Interest owed under this clause 24, will be

recoverable by the Department as a debt due from the Participant.

24.3 Interest

The Participant acknowledges that Interest payable under clause 24.2 represents a reasonable

pre-estimate of the loss incurred by the Department as a result of the loss of investment

opportunity for, or the reasonable cost of borrowing money in place, of the amount which should

have been repaid.

Part I – General requirements

25. Intellectual Property Rights

25.1 Project Material

All Intellectual Property Rights in the Project Material vest in the Participant on creation.

25.2 Licensing of rights in Reports

The Participant grants to, and must ensure all third parties holding Intellectual Property Rights in

the Reports grant to the Department, a perpetual, irrevocable, royalty-free and licence fee-free,

world-wide, non-exclusive licence (including a right of sub-licence) to use, reproduce, modify,

adapt, communicate and exploit the Reports for Commonwealth purposes.

25.3 Licensing of rights in other Project Material

The Participant grants to, and must ensure all third parties holding Intellectual Property Rights in

Project Material (other than the Reports) grant to the Department, a perpetual, irrevocable,

royalty-free and licence fee-free, world-wide, non-exclusive licence (including a right of sub-

licence) to use, reproduce, modify, adapt, publish, perform, broadcast, communicate,

commercialise and exploit that Project Material for the purposes of the Project, the Program and

any other purpose connected with the operation of this Agreement.

25.4 Project Material

On termination or expiry of this Agreement, or earlier if requested by the Department, the

Participant must deliver a copy of all Project Material then in existence to the Department in an

agreed format, or as otherwise directed by the Department.

25.5 Subcontractors

The Participant must ensure that, in any subcontracts it enters with a third party for the purposes

of performing this Agreement, it secures for the Department, equivalent rights to those set out in

clauses 25.2 and 25.3.

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25.6 Intellectual Property warranty

The Participant warrants that:

anything done by the Participant in the course of the Project, including in developing the

Reports, will not infringe the Intellectual Property Rights or Moral Rights of any person;

it has the necessary rights to vest the Intellectual Property Rights and grant the licences

as provided for in this clause 25; and

the Department will not, at any time, be infringing the Intellectual Property Rights of any

person when it undertakes an activity allowed for under this Agreement or uses Project

Material in a manner consistent with the licences granted, or to be granted, to the

Department under this clause 25.

25.7 Moral Rights

In this clause 25, the ‘Specified Acts’ means:

(i) falsely attributing the authorship of any Project Material, or any content in the

Project Material (including without limitation literary, dramatic, artistic works and

cinematograph films within the meaning of the Copyright Act 1968 (Cth)

(Copyright Act);

(ii) materially altering the style, format, colours, content or layout of the Project

Material and dealing in any way with the altered Project Material or infringing

copies (within the meaning of the Copyright Act);

(iii) reproducing, communicating, adapting, publishing or exhibiting any Project

Material, including dealing with infringing copies, within the meaning of the

Copyright Act, without attributing the authorship; and

(iv) adding any additional content or information to the Project Material.

To the extent permitted by applicable Laws and for the benefit of the Department, the

Participant must:

(i) give, where the Participant is an individual; and

(ii) use its best endeavours to ensure that each of the Participant Personnel used in

the production or creation of the Project Material gives,

genuine consent in writing, in a form acceptable to the Department, to the Specified Acts,

even if such an act would otherwise be an infringement of the Moral Rights of the

consenting individual.

25.8 Department Material

Intellectual Property Rights and title to, or in relation to, the Department Material remains

vested at all times in the Department.

The Department grants to the Participant a royalty-free and licence fee-free, world-wide,

non-exclusive licence (including a limited right of sub-licence to sub-license to a

subcontractor specified in Item 2.5 of Schedule 1 or approved by the Department under

clause 5) to use, reproduce and modify the Department Material for the purposes of the

Project. The Participant must ensure that all Department Material is used strictly in

accordance with any conditions or restrictions specified by the Department from time to

time.

26. Protection of Personal Information

26.1 Application of the clause

This clause 26 applies only where the Participant deals with Personal Information when, and for

the purpose of, performing the Project and for the period of the Designated Use, but does not

derogate from any obligation the Participant may have under Law or under this Agreement in

relation to the protection of Personal Information.

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26.2 Definitions

In this clause 26:

(a) agency has the meaning given in the Privacy Act;

(b) Australian Privacy Principles or APPs has the meaning given in the Privacy Act;

(c) Privacy Commissioner and Information Commissioner have the meanings given in the

Australian Information Commissioner Act 2010 (Cth);

(d) Privacy Incident means any actual, apparent, suspected or anticipated:

(i) misuse or loss of, interference with or unauthorised access to, modification of or

disclosure of Personal Information;

(ii) breach of clause 26; or

(iii) request, complaint or enquiry made by a regulatory authority or individual to whom

the Personal Information relates in relation to the handling of Personal Information,

and includes an 'eligible data breach' as defined in the Privacy Act; and

(e) registered APP code has the meaning given in the Privacy Act.

26.3 Obligations

The Participant acknowledges that it may be treated as a ‘contracted service provider’ within the

meaning of section 6 of the Privacy Act, and agrees:

to use or disclose Personal Information obtained during the course of performing the

Project or otherwise under or in connection with this Agreement, only for the purposes of

this Agreement;

to maintain reasonable safeguards against loss, unauthorised access, use, modification or

disclosure and other misuse of Personal Information held in connection with this

Agreement;

not to do any act or engage in any practice that would breach an APP, if done or engaged

in by an agency;

to carry out and discharge the obligations contained in the APPs and comply with any

directions, rules, guidelines, determinations or recommendations of the Information

Commissioner or the Privacy Commissioner, to the extent that they are not inconsistent

with the requirements of this clause 26;

to immediately notify the Department if the Participant becomes aware of a breach or

possible breach of any of the obligations contained in, or referred to in, this clause 26,

whether by the Participant or any subcontractor; and

not to disclose any Personal Information held in relation to this Agreement to an overseas

recipient, without the written prior consent of the Department.

26.4 Privacy Incidents

Without limiting any other term of this Agreement, if a Privacy Incident occurs, then the Participant

must:

immediately notify the Department; and

do all things required by the Department in relation to that Privacy Incident.

26.5 Data breach investigations

If:

the Department becomes aware, or suspects, that a Privacy Incident has occurred; or

the Participant has (or ought to have) notified the Department of a Privacy Incident in

accordance with clause 26.4,

then the Participant must:

45

immediately disclose to the Department all information relevant to that actual or suspected

Privacy Incident (including all relevant information about the processes, procedures,

protocols, and security practices and procedures used in the performance of the Project);

co-operate with the Department in investigating whether a Privacy Incident has occurred

and the circumstances surrounding the Privacy Incident; and

provide the Department with access to and copies of relevant records.

26.6 Subcontracts

The Participant must ensure that any subcontract entered into for the purpose of fulfilling its

obligations under this Agreement contains provisions to ensure that the subcontractor has the

same awareness and obligations as the Participant has under this clause 26, including the

requirement in relation to subcontracts.

26.7 Indemnity

The Participant agrees to indemnify the Department in respect of any Loss suffered or incurred by

the Department which arises directly or indirectly from a breach of any of the obligations of the

Participant under this clause 26, or a subcontractor under the subcontract provisions referred to in

clause 26.6.

27. Confidentiality

27.1 Confidential Information not to be disclosed

The Participant must not, in marking information supplied to the Department, misuse the

term 'Confidential Information' or the Participant's equivalent. The marking of information

as 'Confidential Information' or equivalent is not determinative as to whether the

information is Confidential Information for the purposes of this Agreement.

Subject to clause 27.4, a Party must not, and must ensure its Personnel do not, without

the prior written consent of the other Party, disclose any Confidential Information of the

other Party to a third party.

27.2 Conditions on disclosure

In giving written consent to disclose Confidential Information, a Party may impose such conditions

it considers appropriate and the other Party agrees to comply with those conditions.

27.3 Written undertakings

The Department may at any time require the Participant to arrange for:

(i) its Advisers;

(ii) its Personnel and other employees and subcontractors engaged in the provision

activities under or in connection with this Agreement; or

(iii) any other third party, to whom Confidential Information may be disclosed pursuant

to clause 27.4(a) or 27.4(b),

to give a written undertaking relating to the non-disclosure of the Department's

Confidential Information substantially in a form approved by the Department.

If the Participant receives a request under this clause 27.3, the Participant must promptly

arrange for all requested undertakings to be given.

27.4 Exceptions to obligations

The obligations on the Participant under this clause 27 will not be taken to have been breached to

the extent that Confidential Information:

is disclosed by a Party to its Advisers or Personnel solely in order to comply with

obligations, or to exercise rights, under this Agreement;

is disclosed to a Party's internal management Personnel, solely to enable effective

management or auditing of Agreement related activities;

46

is disclosed by the Department to the responsible Minister or another Minister of State for

the Commonwealth or any State or Territory;

is disclosed by the Department, in response to a request by a House of a Committee of

the Parliament of the Commonwealth;

is shared by the Department within the Department's organisation, or with another

Government Agency where this serves the Commonwealth's legitimate interests;

is authorised or required by Law to be disclosed; or

is in the public domain otherwise than due to a breach of this clause 27.

27.5 Obligation on disclosure

Where a Party discloses Confidential Information to another person:

pursuant to clauses 27.4(a) or 27.4(b), the disclosing Party must:

(i) notify the receiving person that the information is Confidential Information; and

(ii) not provide the information unless the receiving person agrees to keep the

information confidential, including, if requested by the Department, the receiving

person giving the Department a legally binding undertaking to that effect

substantially in a form approved by the Department; or

pursuant to clauses 27.4(c), 27.4(d) or 27.4(e), the disclosing Party must notify the

receiving Party that the information is Confidential Information.

27.6 Period of confidentiality

In relation to any information which the parties agree is Confidential Information for the purposes

of this Agreement, the obligations under this clause 27 continue, notwithstanding the expiry or

termination of this Agreement.

27.7 No reduction in privacy and security obligations

Nothing in this clause 27 derogates from any obligation which either Party may have either under

Law, or under this Agreement, in relation to the protection of Personal Information and security.

28. Acknowledgement and publications The Participant must acknowledge the financial and other support it has received from the

Department:

in all publications, promotional and advertising materials, public announcements, signs or

plaques displayed at the Property, and activities by it or on its behalf in relation to the

Project, or any products, processes or inventions developed as a result of the Project;

by inviting representatives of the Commonwealth (including the Minister) to any formal

public opening of the Works; and

in respect of publications, promotional and advertising materials, public announcements,

signs, plaques, website use or as otherwise directed by the Department, the

acknowledgement must be in the form specified in Item 11 of Schedule 1 or if not

specified in Item 11 of Schedule 1, then in a form, and include content, approved by the

Department.

29. Work health and safety

29.1 Definitions

In this clause 29, Inspector, Notifiable Incident, Regulator, WHS Entry Permit Holder and Worker

have the meanings given in the WHS Act.

29.2 General obligations

The Participant must ensure the Services are performed in a safe manner.

47

Where the health and safety of any person may be affected by the performance of the

Works, the Participant must consult, cooperate and coordinate with the Department in

relation to the health and safety issue.

The Participant must, and must ensure that Participant Personnel in carrying out the

Works comply with WHS Laws.

29.3 Notifying the Department

The Participant must notify the Department as soon as practicable of any concern the

Participant has regarding work health and safety in relation to the Works.

The Participant must immediately notify the Department of any:

(i) breach or suspected breach of the WHS Laws in relation to the Works;

(ii) cessation of work on the Works, or direction to cease work on the Works from any

person having authority under the WHS Laws to do so, due to unsafe work;

(iii) entry by a WHS Entry Permit Holder or Inspector to any place where the Works

are being performed; or

(iv) proceedings against, decision by the Regulator in relation to, or request from the

Regulator to, the Participant or Participant Personnel under the WHS Laws.

The Participant must provide to the Department a copy of any notice issued to the

Participant under the WHS Laws in relation to the Works as soon as possible and in any

event within 24 hours after receipt.

If the Participant is required by the WHS Laws to report a Notifiable Incident to the

Regulator in relation to Works, the Participant must:

(i) as soon as is practicable in the circumstances, notify the Department of the

Notifiable Incident and, if requested by the Department, provide a copy of any

written notice given to the Regulator; and

(ii) if requested by the Department, provide within the timeframe specified by the

Department a report on the Notifiable Incident, the results of any investigations

into its cause, and any recommendations for prevention in the future.

29.4 Relationship to other obligations

If there is any inconsistency between this clause 29 and the WHS Laws, the WHS Laws

prevail to the extent of the inconsistency.

The Participant acknowledges that it is responsible for:

(i) complying with its obligations under WHS Laws; and

(ii) performing the Works in accordance with this Agreement,

and will not be relieved of that responsibility because of:

(iii) anything in this clause 29 or in any policy or procedure referred to in this

clause 29;

(iv) any instruction or direction or failure to give an instruction or direction under this

clause 29;

(v) any exercise of, or failure to exercise, the Department's rights under this

clause 29; or

(vi) any notice or other document or communication from the Participant under this

clause 29.

To the extent permitted by Law, the Department is not liable to the Participant for any

losses in connection with work health and safety in relation to the Works.

48

29.5 Non-compliance

If, during the performance of any work under this Agreement, the Department notifies the

Participant that the Department is satisfied that the Participant is:

(i) not performing the work in compliance with the Participant's work health and

safety plan, work health and safety management procedures or relevant

legislation; or

(ii) performing the work in such a way as to endanger the health and safety of the

Participant,

the Participant must promptly remedy that breach of health and safety.

Without limiting clause 23.1,the Department may direct the Participant to suspend the

work until such time as the Participant satisfies the Department that the work will be

resumed in conformity with applicable work health and safety provisions. During periods of

suspension referred to above, the Department will not be required to make any payment

whatsoever to the Participant.

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30. Compliance with the Code for the Tendering and Performance of Building Work 2016

Note to Applicants: The Building Code applies to indirectly funded 'building work', funded by the

Commonwealth through a grant or other program, in circumstances in which the funding for the

building work is an explicit component of the grant or program, and for which:

the value of the Commonwealth’s contribution to the project that includes the building

work is at least $5,000,000 and represents at least 50% of the total construction project value; or

the Commonwealth’s contribution to the project that includes the building work is at least

$10,000,000 (irrespective of its proportion of the total construction project value).

If the Building Code applies to an applicant's proposed project, it will be required to comply with

the Building Code and the requirements set out in this clause 30.

30.1 Definitions

In this clause 30, the following terms have the following meanings:

ABCC means the body referred to in subsection 29(2) of the Act;

Act means the Building and Construction Industry (Improving Productivity) Act 2016 (Cth);

Building Code means the Code for the Tendering and Performance of Building Work

2016, which is available at https://www.legislation.gov.au/Details/F2017C00668;

Building Contractor has the same meaning as in the Act;

Building Industry Participant has the same meaning as in the Act;

Building Work has the same meaning as in subsection 3(4) of the Building Code;

Commonwealth Funded Building Work means Building Work in items 1-8 of Schedule 1

of the Building Code;

Contractor means a Building Contractor or Building Industry Participant who the

Participant has entered, or proposes to enter, into a contract with to undertake any of the

Works;

Exclusion Sanction has the same meaning as in subsection 3(3) of the Building Code;

Funding means the funding provided by the Commonwealth to the Participant;

Related Entity has the same meaning as in subsection 3(2) of the Building Code; and

Works means Commonwealth Funded Building Work that is being indirectly funded by the

Commonwealth through the provision of the Funding to the Participant.

30.2 Building Code requirements

The Participant must ensure that:

(i) tender processes and calls for expressions of interest (howsoever described) in

respect of Commonwealth Funded Building Work are conducted in a manner

consistent with the Building Code; and

(ii) respondents are only permitted to participate in tender processes where the

respondent is not subject to an Exclusion Sanction.

The Participant must ensure that any request for expressions of interest or request for

tender (howsoever described) for Commonwealth Funded Building Work requires a

respondent:

(i) to confirm that the respondent and any related entity will comply with the Building

Code when undertaking the Commonwealth Funded Building Work;

(ii) to confirm that the respondent, and any related entities, will comply with the

Building Code from the time of lodging an expression of interest or tender

response (if not already obliged to do so);

(iii) to confirm that it is not subject to an Exclusion Sanction at the time of lodging an

expression of interest or tender;

50

(iv) to demonstrate a positive commitment to the provision of appropriate training and

skill development for their workforce. Such commitment may be evidenced by

compliance with any state or territory government building training policies and

supporting the delivery of nationally endorsed building and construction

competencies;

(v) to include details of the number of current apprentice and trainee employees and

the number and classes of persons that hold visas under the Migration Act 1958

that are engaged by the respondent, and that are intended to be engaged by the

respondent to undertake the Commonwealth Funded Building Work;

(vi) to advise whether the respondent has, within the preceding 3 year period:

(A) had an adverse decision, direction or order made by a court or tribunal for

a breach of a designated building law, work health and safety law or the

Migration Act 1958;

(B) been required to pay any amount under an adjudication certificate

(provided in accordance with a law relating to the security of payments that

are due to persons in respect of building work) including by any related

entity to a Building Contractor or Building Industry Participant; or

(C) owed any unsatisfied judgement debts (including such debts owed by any

related entity) to a Building Contractor or Building Industry Participant.

Where the value of the Commonwealth’s contribution to the project that includes the

Works meets the financial thresholds set out in Item 1, Schedule 2 to the Building Code,

the Participant must:

(i) ensure the requirement to have a Workplace Relations Management Plan

(WRMP) for the Works approved by the ABCC is included in all expression of

interest and tender documents; and

(ii) on behalf of the funding entity:

(A) apply to the ABCC to have a WRMP for the Works approved;

(B) ensure that an application to the ABCC for approval of a WRMP for the

Works is made in the manner and form required by the ABC

Commissioner;

(C) ensure that the proposed WRMP for the Works is accompanied by any

supporting evidence required by the ABCC; and

(iii) obtain and provide additional information to the ABCC when requested, to enable

the ABCC to make a decision whether or not to approve the proposed WRMP for

the Works.

31. WHS Accreditation Scheme

31.1 Definitions

In this clause 31 the following terms have the following meanings:

(a) Act means the Building and Construction Industry (Improving Productivity) Act 2016 (Cth);

(b) Building Work has the meaning given to it by section 6 of the Act;

(c) Office of the Federal Safety Commissioner means the office of the Federal Safety

Commissioner within the meaning of the Act; and

(d) Scheme means the Scheme described at section 43 of the Act.

31.2 WHS Accreditation Scheme

Subject to the exclusions specified in section 26 of the Building and Construction Industry

(Improving Productivity) (Accreditation Scheme) Rules 2019 the Participant must ensure that all

contracts the Participant enters into for the provision Building Work in respect of the Project that

are valued at $4 million or more:

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(a) are notified to the Office of the Federal Safety Commissioner at the earliest possible

opportunity; and

(b) contain a requirement that the builder of the Building Works:

(i) is accredited under the Scheme;

(ii) maintains Scheme accreditation for the life of the contract; and

(iii) must comply with all conditions of the Scheme accreditation.

32. Compliance with Laws and policies

32.1 Compliance with laws and policies

The Participant must at all times and at its own cost, comply with, and require its Personnel to

comply with:

all Laws;

the Department Policies;

requirements of any Commonwealth, State, Territory or local authority (including any

Proper Authority); and

any guidelines (including the Guidelines) and policies notified to the Participant in writing

from time to time by the Department.

32.2 Criminal Code

The Participant acknowledges that under section 137.1 of the Schedule to the Criminal Code Act

1995 (Cth), giving false or misleading information to the Department is a serious offence.

33. Disputes

33.1 No arbitration or court proceedings

The Parties agree not to commence any arbitration or court proceedings in respect of any dispute

arising under this Agreement (except proceedings for urgent interlocutory relief), which has not

been resolved by informal discussion, until the procedure provided by this clause 33 has been

followed. After a party has sought or obtained any urgent interlocutory relief, that party must follow

this clause 33.

33.2 Parties to resolve dispute

The Parties agree that any dispute arising during the Agreement Period will be dealt with as

follows:

the Party claiming that there is a dispute must give the other a written notice setting out

the nature and details of the dispute;

the Parties must use reasonable efforts to try to resolve the dispute through direct

negotiation, including by referring the matter to persons who have authority to intervene

and direct some form of resolution;

the Parties have 10 Business Days from the date a notice is given under clause 33.2(a)

(or longer period if the Parties agree) to reach a resolution or to refer the dispute to a

mediator if one of them requests.

33.3 Appointment of mediator

If the parties to the dispute cannot agree on a mediator within seven days after a request under

clause 33.2(c), the chairperson of the Resolution Institute or the chairperson's nominee will

appoint a mediator.

33.4 Role of mediator and obligations of parties

The role of a mediator is to assist in negotiating a resolution of the dispute. A mediator may not

make a binding decision on a party to the dispute except if the party agrees in writing. Unless

52

agreed by the mediator and parties, the mediation must be held within 21 days of the request for

mediation in clause 33.2(c). The parties must attend the mediation and act in good faith to

genuinely attempt to resolve the dispute.

33.5 Confidentiality

Any information or documents disclosed by a party under this clause 33:

must be kept confidential; and

may only be used to attempt to resolve the dispute.

33.6 Costs

Each party to a dispute must pay its own costs of complying with this clause 33.

33.7 Termination of process

A party to a dispute may terminate the dispute resolution process by giving notice to each other

party after it has complied with clauses 33.1 to 33.4. Clauses 33.5, 33.6, 33.9 and 33.10 survive

termination of the dispute resolution process.

33.8 Breach of this clause

If a party to a dispute breaches clauses 33.1 to 33.7, the other party does not have to comply with

those clauses in relation to the dispute.

33.9 No limitation

Nothing in this clause 33 limits, prevents or otherwise affects the Department's rights under

clauses 20, 23 or 24.

33.10 Obligations continue

The Department and the Participant must continue to perform their respective obligations under

this Agreement pending the resolution of a dispute.

34. GST, taxes, duties and Government charges

34.1 Defined terms

In this clause 34:

unless the context otherwise requires, a word or expression defined in the A New Tax

System (Goods and Services Tax) Act 1999 (Cth) (GST Act) has the meaning given to it

in that Act;

a reference to a GST liability or input tax credit entitlement of a party includes a GST

liability or input tax credit entitlement of the representative member of any GST group of

which that Party is a member;

any part of a supply that is treated as a separate supply for GST purposes (including

attributing GST payable to tax periods) will be treated as a separate supply for the

purposes of this clause 34; and

any reference to GST payable by, input tax credit entitlements of or adjustments for an

entity includes any notional GST, input tax credit or adjustments arising in accordance

with Division 177 of the GST Act or any relevant State legislation confirming the

imposition of GST on State entities.

34.2 Consideration GST exclusive

Any consideration to be paid or provided for a supply made under or in connection with this Agreement, unless specifically described in this Agreement as 'GST inclusive', does not include an amount on account of GST.

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34.3 Gross up

If a Party (Supplier) makes a supply to another party (Recipient) under or in connection with this Agreement in respect of which GST is payable (not being a supply the consideration for which is specifically described in this Agreement as 'GST inclusive'):

the consideration payable or to be provided for that supply under this Agreement but for

the application of this clause (GST exclusive consideration) is increased by, and the

Recipient must pay to the Supplier, an additional amount equal to the GST payable on the

supply (GST Amount); and

subject to clause 34.5, the GST Amount must be paid to the Supply Maker by the

Recipient at the same time as the first part of any of the GST exclusive consideration is

payable or to be provided.

34.4 Reimbursement

If a Party must reimburse or indemnify another Party for a loss, cost or expense, the amount to be reimbursed or indemnified is first reduced by any input tax credit the first Party is entitled to for that loss, cost or expense, and then increased in accordance with clause 34.3.

34.5 Recipient Created Tax invoices

The parties acknowledge and agree that unless the Department notifies the Participant

otherwise:

(i) the Department will issue tax invoices (recipient created tax invoices) to the

Participant for all supplies made by the Participant to the Department under or in

connection with this Agreement;

(ii) the Participant will not issue tax invoices for the supplies made by the Participant

to the Department under or in connection with this Agreement;

(iii) the Department and the Participant are registered for GST and will remain so

registered for the term of this Agreement;

(iv) notwithstanding 34.5(a)(iii), a Party will immediately notify the other in writing if it

ceases to be registered for GST at any time; and

(v) the Participant indemnifies the Department for any loss, cost or expense (including

any denied input tax credits) arising if the Participant fails to comply with this

clause 34.5;

Except where the clause 34.5(a) applies, a Party need not pay a GST Amount under this

Agreement until it receives a tax invoice from the Supply Maker for the supply to which the

payment relates.

34.6 Exclusion of GST from calculations

If a payment under this Agreement is calculated by reference to or as a specified percentage of

another amount or revenue stream, that payment will be calculated by reference to or as a

specified percentage of the amount or revenue stream exclusive of GST.

34.7 Adjustments

If the GST payable by a Supplier on any supply made under or in connection with this

Agreement varies from the GST Amount paid by the Recipient under clause 34.3, then the

Supplier will provide a corresponding refund or credit to, or will be entitled to receive the

amount of that variation from, the Recipient so that the correct GST Amount has been

paid.

Any payment, credit or refund under this clause is deemed to be a payment, credit or

refund of the GST Amount payable under clause 34.3.

If an adjustment event occurs in relation to a supply, the Supplier must issue an

adjustment note to the Recipient in relation to that supply within 14 days after becoming

aware of the adjustment.

34.8 Other Taxes

Subject to this clause 34, all taxes, duties and government charges (Taxes) imposed or levied in

Australia or overseas in connection with this Agreement must be paid by the Participant.

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35. Notices

35.1 Service of notices

A notice, demand, consent, approval or communication under this Agreement must be in writing,

in English and signed by a person duly authorised by the sender. A notice or other communication

is properly given or served by a party if that party:

delivers it by hand;

posts it;

transmits it by electronic mail; or

transmits it by any other electronic means,

to the recipient's address for notices specified in Item 12 of Schedule 1, as varied by any notice

given by the recipient to the sender.

35.2 Effective on receipt

A notice given in accordance with clause 35.1 takes effect when taken to be received (or at a later

time specified in it), and is taken to be received:

if delivered by hand, when the party who sent the notice holds a receipt for it, signed by a

person employed by the intended recipient at the physical address for receipt of notices;

if sent by post from and to an address within Australia and correctly addressed, after three

Business Days;

if sent by post from or to an address outside Australia and correctly addressed, after 10

Business Days;

if sent by electronic mail, only in the event that the other party acknowledges receipt by

any means in person, by phone or by a message which has been generated by the

intended recipient and not purely by a machine; or

if sent by any other electronic means, only in the event that the other party acknowledges

receipt in person, by phone or by message which has been generated by the intended

recipient and not purely by a machine, or by other means agreed by the parties,

and if the delivery, receipt or transmission of the notice is not on a Business Day or is after

5.00pm on a Business Day, at 9.00am on the next Business Day.

35.3 Notice of Changes

The Department may, by issue of a Notice of Change, advise the Participant of changes to the

Agreement that are minor or of an administrative nature, provided that any such changes do not

increase the Participant’s obligations under this Agreement. Such changes, while legally binding,

are not variations for the purpose of clause 39.4.

36. Conflicts of interest

36.1 Warranty that there is no conflict

The Participant warrants that, to the best of its knowledge after making diligent inquiry, at the Date

of this Agreement, no Conflict exists or is likely to arise in the performance of obligations under

this Agreement by the Participant or its Personnel.

36.2 Notification of a conflict

If during the Agreement Period, a conflict of interest arises, or appears likely to arise, the

Participant must:

(i) immediately notify the Department in writing of the Conflict making a full disclosure

of all relevant information relating to the Conflict and setting out the steps the

Participant proposes to take to resolve or otherwise deal with the Conflict; and

55

(ii) take such steps as have been proposed by the Participant, and/or take such steps

as the Department may reasonably require to resolve or otherwise deal with the

Conflict.

If the Participant fails to notify the Department under this clause 36, or is unable or

unwilling to resolve or deal with the Conflict as required, the Department may terminate

this Agreement.

36.3 Participant to avoid Conflict

The Participant agrees that it will not, and will use its best endeavours to ensure that any

Participant Personnel do not, engage in any activity or obtain any interest during the Agreement

Period that is likely to Conflict with or restrict the Participant in performing the Project fairly and

independently.

37. Fraud control The Participant must:

implement appropriate policies and processes that reduce the likelihood of consequences

of fraud occurring in its organisation, that are in accordance with the Commonwealth

Fraud Framework (see https://www.ag.gov.au/Integrity/FraudControl/Pages/default.aspx)

and relevant Australian industry standards (as amended from time to time); and

notify the Department immediately upon becoming aware of any occurrence of fraud

within its organisation, or any circumstances that indicate the likely occurrence of fraud

within its organisation, and provide a description of the circumstances of the fraud or

potential occurrence of fraud, the nature of the loss or damage, the date the Participant

became aware of the loss or damage and the steps being taken to investigate the

circumstances of the fraud or potential occurrence of fraud.

38. Warranties and representations

38.1 Participant representations and warranties

The Participant represents and warrants to the Department during the Agreement Period that:

if it is a body corporate, it is duly incorporated in accordance with the Law of its place of

incorporation, validly exists under that Law and has the capacity to sue or be sued in its

own name and to own its property and conduct its business as it is being conducted;

it has full power and authority to enter into, perform and observe its obligations under this

Agreement;

the execution, delivery and performance of this Agreement has been duly and validly

authorised by the Participant;

this Agreement constitutes valid and legally binding obligations on it and is enforceable

against it by the Department in accordance with its terms;

each authorisation from, and filing and registration with, a government agency necessary

to enable it to unconditionally execute and deliver and comply with its obligations under

this Agreement and carry on its principal business or activity has been obtained, effected

and complied with;

it will promptly notify and fully disclose to the Department in writing any event or

occurrence actual or threatened arising during the Agreement Period which could have an

adverse effect on the Participant's ability to perform any of its obligations under this

Agreement;

it will promptly notify and fully disclose to the Department in writing if an Insolvency Event

occurs with respect to it;

the unconditional execution and delivery of, and compliance with its obligations by it under

this Agreement do not:

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(i) contravene any Law to which it or any of its property is subject or any order or

directive from a Proper Authority binding on it or any of its property;

(ii) contravene its constituent documents;

(iii) contravene any agreement or instrument to which it is a party;

(iv) contravene any obligation of it to any other person; or

(v) require it to make any payment or delivery in respect of any financial indebtedness

before the scheduled date for that payment or delivery;

no litigation, arbitration, mediation, conciliation or administrative proceedings are taking

place, pending, or to the knowledge of any of its officers after due inquiry, are threatened

against the Participant which, could have an adverse effect on the Participant's capacity to

perform its obligations under this Agreement or the Participant's reputation;

unless otherwise disclosed in this Agreement, it is not entering into this Agreement as

trustee of any trust or settlement;

it has not made any false declaration in respect of any current or past dealings with the

Department, the Commonwealth or any Proper Authority, including in any tender or

application process or in any agreement;

it has had no significant deficiency in the performance of any substantive requirement or

obligation under any prior agreement with the Department, the Commonwealth or any

Proper Authority;

it has, and will continue to have and to use, the skills, qualifications and experience,

including the Participant Personnel occupying a Specified Personnel position, to perform

each Project in an efficient and controlled manner with a high degree of quality and

responsiveness and to a standard that complies with this Agreement;

it has and will continue to have skilled, qualified and experienced people in Specified

Personnel positions who are capable of performing each Project in accordance with this

Agreement; and

it has and will continue to have the necessary resources to perform each Project and will

use those resources to perform each Project.

38.2 Department reliance

The Participant acknowledges that the Department in entering into this Agreement is relying on

the warranties and representations contained in this Agreement.

39. General provisions

39.1 Survival

Any term by its nature intended to survive termination or expiry survives termination or expiry of

this Agreement, including:

clause 4.6 (Rectification);

clause 4.8(c) (Practical Completion);

clause 5 (Subcontracting and subcontractor management);

clause 8.2 (Participant warranties and representations);

clause 9 (Security);

clause 10 (Designated Use);

clause 14 (Records);

clause 15 (Reports);

clause 18 (Access to premises and materials);

clause 19 (Assets);

clause 20 (Step-in rights);

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clause 21 (Indemnities);

clause 22 (Insurance);

clause 23 (Suspension and termination);

clause 24 (Repayment of Funds);

clause 25 (Intellectual Property Rights);

clause 26 (Protection of Personal Information);

clause 27 (Confidentiality);

clause 28 (Acknowledgement and publications);

clause 33 (Disputes);

clause 34 (GST, taxes, duties and Government charges);

clause 35 (Notices);

clause 38 (Warranties and representations); and

clause 39.1 (Survival).

39.2 Governing law and jurisdiction

This Agreement is governed by, and is to be construed in accordance with, the law in force in the

Australian Capital Territory and each party irrevocably and unconditionally submits to the

non-exclusive jurisdiction of the courts of that jurisdiction.

39.3 Entire agreement

This Agreement records the entire agreement between the Parties in relation to its subject matter

and supersedes all previous agreements or understandings between the parties in connection

with its subject matter.

39.4 No variation

Subject to clauses 3.3 and 35.3, no variation of this Agreement is binding unless agreed in writing

and signed by both the Parties.

39.5 Severance

A term or part of a term of this Agreement that is illegal or unenforceable may be severed from

this Agreement. Any reading down or severance of a particular provision does not affect the other

provisions of this Agreement.

39.6 Waiver

A waiver of any provision of this Agreement must be in writing.

No waiver of a term or condition of this Agreement will operate as a waiver of another

breach of the same or of any other term or condition contained in this Agreement.

If a Party does not exercise, or delays in exercising, any of its rights under this Agreement

or at Law, that failure or delay does not operate as a waiver of those rights.

A single or partial exercise by a Party of any of its rights under this Agreement or at Law

does not prevent the further exercise of any right.

39.7 Relationship

The Participant must not represent itself, and must ensure that its officers, employees,

agents and subcontractors do not represent themselves as being an officer, employee,

partner or agent of the Department, or as otherwise able to bind or represent the

Department.

This Agreement does not create a relationship of employment, agency, joint venture or

partnership between the Parties.

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39.8 Assignment

The Participant must not assign any of its rights, or novate any of its rights or obligations, under

this Agreement without prior approval in writing from the Department.

39.9 Costs

Each Party must pay its own costs and expenses of negotiating, preparing and executing this

Agreement.

39.10 Counterparts

This Agreement may be executed in counterparts. All executed counterparts constitute one

document.

39.11 Further acts

The Participant must do, at its own expense, everything reasonably necessary (including

executing documents) to give full effect to this Agreement and any transaction contemplated by it.

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Schedule 1 – Agreement Details

Note to Applicants: This Schedule 1 will be further developed for each successful applicant in

light of that applicant's grant application and the Guidelines.

1. General

1.1 Program Objectives

(a) Increased the supply of emergency and crisis accommodation to provide additional safe

places for women and children experiencing domestic and family violence. It could also

fund renovations and repurposing of buildings, where it creates new emergency

accommodation.

(b) In relation to those women and children experiencing domestic and family violence,

increase the proportion of women and children housed in a safe place due to the provision

of additional emergency accommodation.

1.2 Aim of the Project

To deliver the Program Objectives through by delivering new additional emergency

accommodation.

These dwellings must be made available, during the Designated Use Period, as emergency

accommodation to provide additional safe places to women and children experiencing domestic

and family violence.

1.3 Guidelines

Safe Places Emergency Accommodation Grant Opportunity Guidelines.

2. Project

2.1 Project description

Note to Applicants: This Item 2 will be developed in light of each successful applicant's grant

application in light of requirements set out in the Guidelines.

Applicants should note that the dwellings will be required to meet minimum requirements under

the Livable Housing Design Guidelines (silver level) published by Livable Housing Australia from

time to time (see http://www.livablehousingaustralia.org.au/).

2.2 Works

The Works required to carry out the Project in accordance with the Project Plan and otherwise

comply with the requirements of this Agreement, including (without limitation) the design,

construction, modification, expansion, refurbishment or fit-out (as the case may be) of dwellings

on the Property.

2.3 Property

The Participant must acquire suitable real property (in accordance with the requirements of this

Agreement) for development in accordance with clause 7 of this Agreement.

2.4 Project Documents

The Participant must provide the Department with the following Project Documents where

relevant:

(a) drawings and specifications for the Works which contain sufficient details and definition to

enable a competent builder to construct the Works without further determination as to

form, quality or quantity;

(b) a site plan including ingress and egress arrangements for pedestrians and motor vehicles;

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(c) development Approval;

(d) land owner approval;

(e) design brief;

(f) design specifications;

(g) design drawings;

(h) equipment specifications and suppliers;

(i) list of proposed head contractors to be invited to tender;

(j) tender acceptance report;

(k) certification of equipment delivered to site and commissioned;

(l) accreditation (as required) for training offered; and

(m) evidence of certification as required by clause 4.8(a)(iv) of this Agreement.

2.5 Contractors

[insert]

2.6 Specialist Service Providers

[insert]

3. Project time frames

3.1 Commencement of the Works

The Participant must commence the Works on or before [insert date].

3.2 Date for Practical Completion

The Date for Practical Completion is 30 June 2022.

3.3 Project Period

The Project Period commences on the Date of this Agreement and ends on the date on which the

Participant achieves Practical Completion of the Works.

3.4 Approval of Draft Project Plan and Budget timeframe (clause Error! Reference source not found.)

[insert]

3.5 Timeframe for identifying a suitable property (clauses 7 and 23.1(a)(i))

[insert]

4. Designated Use (clause 10)

4.1 Designated Use Period

The Designated Use Period is the period commencing on the date that the Participant achieves

Practical Completion of the Works and expiring on the date that is 15 years after that date.

4.2 Designated Use

(a) The provision of emergency accommodation in accordance with the Guidelines.

(b) Making Specialist Services available to those women and children in accordance with

clause 11 of this Agreement and the Guidelines.

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5. Reports (clause 15)

5.1 Progress Reports (clause 15.2(a))

(a) Progress Reports are required in respect of Milestones 2 and 3 only.

(b) Each Progress Report must include:

(i) evidence of completion of all applicable deliverables and/or the documents set out

in the Milestone Schedule for the applicable Milestone;

(ii) the Funds received for the period and total to date;

(iii) expenditure (period to date); and

(iv) any amendments to the Project Plan or the Project Budget.

5.2 Acquittal Report (clause 15.3)

(a) Each Acquittal Report must include:

(i) an Audited detailed statement of receipts and expenditure in respect of the Funds

for the Project prepared by an Approved Auditor in compliance with the Australian

Auditing Standards which must include:

(A) a definitive statement as to whether the financial accounts are complete

and accurate;

(B) a copy of the Approved Auditor's letter to management; and

(C) a statement of the balance of the Funds for the Project;

(ii) a certificate provided by the Chief Executive Officer or Chief Financial Officer of

the Participant, or a person authorised by the Participant to execute documents

and legally bind the Participant by their execution, confirming that:

(A) the Funds and Other Contributions received for the Project were spent for

the purpose of the Project and in accordance with this Agreement and that

the Participant has complied with this Agreement;

(B) salaries and allowances paid to persons involved in the Project are in

accordance with any applicable award or agreement in force under any

relevant Law on industrial or workplace relations; and

(C) at the time the Acquittal Report is provided to the Department, the

Participant is able to pay all its debts as and when they fall due;

(iii) a version of the Project Material and Reports for the Project produced to the date

of the Acquittal Report;

(iv) the information required under clause 5.3 of this Agreement;; and

(v) any other requirements notified by the Department in writing.

(b) In preparing the certificate required under Item 5.2(a)(ii) of this Schedule 1, the Participant

should have regard to:

(i) clause 32.2 of this Agreement: and

(ii) any other requirements notified by the Department in writing

(c) The Participant must provide a copy of the Assets register as at the time the Acquittal

Report is provided to the Department.

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Timetable for provision of Acquittal Report, unless otherwise agreed in writing between the

Department and the Participant, noting that an Acquittal Report is only required for the year/s

funding is received.

Report Reporting period Due date

2020-21

Acquittal

Report

Commencement of Project Period to 30 June

2021

30 September 2021

2021-22

Acquittal

Report

1 July 2021 to end of the Project Period. 30 September 2022 or three (3)

months after the end of the

Project Period]

5.3 Final Report (clause 15.4)

The Final Report must include:

(a) a comprehensive report on actual performance against the Milestones, the Guidelines and

the Aim of the Project and Program Objectives, including whether the Aim of the Project

and Program Objectives were achieved and, if not, why not;

(b) certificate of occupancy;

(c) a certificate provided by a person authorised by the Participant, confirming that the

Specialist Service Provider has commenced delivery of the Specialist Services in

accordance with Item 4.2 of Schedule 1, including that those Personnel delivering

Specialist Services comply the requirements set out in clauses 11.2 and 11.3 of this

Agreement .

Timetable for provision of the Final Report, unless otherwise agreed in writing between the

Department and the Participant

Report Reporting period Due date

Final Report Duration of the Project Period Within 30 days of the Participant

achieving Practical Completion.

5.4 Designated Use Report (clause 15.5)

Each Designated Use Report must:

(a) be provided by the Chief Executive Officer of the Participant (or equivalent);

(b) describe the way in which the Works have been used in the reporting period, including

evidence of compliance with clause 10.1, 10.3 and 11 of this Agreement;

(c) confirm whether or not the Property and the Works have been used for the Designated

Use in the reporting period; and

(d) include a statement of how many women and children were housed in a safe place in the

reporting period due to the Works.

Report Reporting period Due date

Designated

Use Report

Commencement of Designated Use Period – 30

June 2023 and each financial year thereafter for

the duration of the Designated Use Period

15 August annually from the

commencement of the

Designated Use Period

6. Funds and Milestones (clauses 4, 12 and 13)

6.1 Funds

Maximum amount of Funds: The maximum amount of Funds payable by the Department under

this Agreement will be [insert amount] (exclusive of GST).

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6.2 Milestone Schedule

The proportion of the Funds specified in respect of each Milestone in the Milestone Schedule will

be paid to the Participant in accordance with the Milestone Schedule within 30 days of the

Participant achieving the Milestone to the satisfaction of the Department and after receipt by the

Department of a correctly rendered invoice and any Reports required under clause 15 of this

Agreement. The Department may revise the Milestone Schedule by notice to the Participant.

6.3 Invoice requirements (clause 12.2)

A correctly rendered invoice is one that:

(a) identifies the name of the Project;

(b) sets out the name of the Funding Arrangement Manager;

(c) contains a claim for the amount of the Funds properly required; and

(d) is a tax invoice.

6.4 Other Contributions

[Note to Applicants: The below table will be populated based on a successful applicant's

grant application.]

Contributor Nature of

Contribution

Amount (GST

exclusive)

Timing

[insert name of entity

providing the Other

Contribution (this may

be the Participant)]

[insert description of

contribution, e.g., cash,

access to equipment,

secondment of

personnel etc]

$[insert] [insert date or

Milestone to which the

Other Contribution

relates]

7. Contact Officer and address (clauses 1.1 and 17)

7.1 Funding Arrangement Manager

The Funding Arrangement Manager is available at the following address:

Community Grants Hub

GPO Box 9820

Hobart TAS 7001

and available on the following telephone number and email address:

Phone: 1800 044 584 (Choose Option 2 for Capital Grants team)

Email: capital@dss.gov.au

7.2 Participant Contact Officer

The Participant Contact Officer is the person occupying the position of [insert]. This position is

currently occupied by [insert] available at the following address:

[insert] and available on the following telephone number and email address:

Phone: [insert]

Email: [insert]

8. Specified Personnel Positions (clause 4.3) The Specified Personnel Positions are as set out in the Project Plan.

64

9. Insurance (clause 22)

9.1 On execution of this Agreement:

(a) To the extent required by Law, workers compensation insurance in respect of the

Participant’s liability for any loss or claim by a person employed or otherwise engaged, or

deemed to be employed or otherwise engaged, by the Participant in connection with the

Project; and

(b) Public liability policy covering legal liability (including liability assumed under contract) for

loss or damage to property or injury or death to persons arising out of or in connection

with carrying out the Works, for the sum of twenty million dollars ($20,000,000) per claim,

or per occurrence giving rise to a claim.

9.2 On acquisition of an interest in the Property or execution of this Agreement (as applicable):

(a) If the Property is not owned by the Participant, property damage insurance for the full

reinstatement value of all fixtures, structures, improvements, fittings, plant, equipment,

vehicles and other articles in or on the area leased or licensed to the Participant and

which are the property of the Participant including any Asset; and

(b) If the Property is owned by the Participant, building insurance (including plate glass) for its

full reinstatement or replacement value (including architects, surveyors and other

professional fees, the cost of debris removal, demolition, site clearance, any works that

may be required by any Law and incidental expenses) at the time of loss or damage,

against loss or damage from fire, lightning, flood, storm and tempest, earthquake, water

damage (including sprinkler leakage and rain water), explosion or concussion from

explosion, impact by vehicles or aircraft or articles dropped from aircraft, riots, strikes, civil

commotion, malicious damage, terrorism, radiation and fusion and such other risks

(present or future) against which a building owner would ordinarily insure.

9.3 On commencement of the Works:

(a) Contract works policy covering loss or damage to the Works and any temporary work

including materials stored off site or in transit, for the full reinstatement and replacement

cost of the Works including:

(i) the full amount of the cost to the Participant to construct the Works (Works Cost);

(ii) an amount reasonably providing for additional costs of demolition and of removal

of debris (to be not less than 10% of the Works Cost);

(iii) a further amount reasonably sufficient for consultants' fees (to be not less than 5%

of the Works Cost); and

(iv) an amount providing for escalation costs incurred including those costs as may be

incurred (during any period of reinstatement or replacement) during the period up

to the date of achievement of Practical Completion,

and the Participant must ensure that the policy specified in this Item 9.3 of Schedule 1

notes the interest of the Department;

(b) Products liability policy covering legal liability (including liability assumed under contract)

for loss or damage to property or injury or death to persons arising out of or in connection

with carrying out the Works, for the sum of twenty million dollars ($20,000,000) per claim,

or per occurrence giving rise to a claim;

(c) If asbestos decontamination work is required as part of the Works, an asbestos liability

policy in respect of the risks associated with asbestos decontamination work, for the sum

of twenty million dollars ($20,000,000) per claim, or per occurrence giving rise to a claim;

(d) Professional indemnity insurance, covering liability for any act, error or omission arising

out of or in any way connected with the design elements of the Project. The professional

indemnity insurance policy must have a limit of indemnity for an amount of not less than

one million dollars ($1,000,000) per claim, or occurrence giving rise to claim. The policy

must:

65

(i) cover claims under the Competition and Consumer Act 2010 (Cth) (including

Schedule 2 - The Australian Consumer Law) and any similar legislation in any

other State or Territory; and

(ii) include at least one (1) automatic right of reinstatement of the sum insured; and

(e) The Participant must ensure that each professional Participant identified in the table

below, holds a professional indemnity policy in the amount specified in respect of that

professional Participant in the table below, to cover its liability for breach of professional

duty (if applicable) arising out of any negligence, whether in relation to errors in design,

documentation, supervision or other professional duties. Such cover must extend to

liability for personal injury, illness or death of anyone in connection with the provision of

professional services or as a result of breach of professional duty:

Professional

Participant

Professional indemnity coverage

Architect $10 million

Builder $20 million

Fire Services $2 million

Electrical $10 million

Hydraulic $5 million

Civil $10 million

Mechanical $10 million

Building Code of

Australia

$5 million

9.4 On commencement of the Designated Use Period:

(a) To the extent required by Law, workers compensation insurance in respect of the

Participant’s liability for any loss or claim by a person employed or otherwise engaged, or

deemed to be employed or otherwise engaged, by the Participant in connection with the

Project;

(a) Public liability policy covering legal liability (including liability assumed under contract) for

loss or damage to property or injury or death to persons arising out of or in connection

with carrying out the Works, for the sum of twenty million dollars ($20,000,000) per claim,

or per occurrence giving rise to a claim;

(b) Where the Property is not owned by the Participant, property damage insurance for the full

reinstatement value of all fixtures, structures, improvements, fittings, plant, equipment,

vehicles and other articles in or on the area leased or licensed to the Participant and

which are the property of the Participant including any Asset; and

(c) Where the Property is owned by the Participant, building insurance (including plate glass)

for its full reinstatement or replacement value (including architects, surveyors and other

professional fees, the cost of debris removal, demolition, site clearance, any works that

may be required by any Law and incidental expenses) at the time of loss or damage,

against loss or damage from fire, lightning, flood, storm and tempest, earthquake, water

damage (including sprinkler leakage and rain water), explosion or concussion from

explosion, impact by vehicles or aircraft or articles dropped from aircraft, riots, strikes, civil

commotion, malicious damage, terrorism, radiation and fusion and such other risks

(present or future) against which a building owner would ordinarily insure.

10. Repayment amount (clause 10.2) The repayment amount will be calculated according to the following formula:

66

(a) Within the first six years of the Designated Use Period, all Funds paid by the Department

to the Participant will need to be repaid.

(b) In the sixth year of the Designated Use Period, 90 per cent of all Funds will need to be

repaid.

(c) In the seventh year of the Designated Use Period, 80 per cent of all Funds will need to be

repaid.

(d) In the eighth year of the Designated Use Period, 70 per cent of all Funds will need to be

repaid.

(e) In the ninth year of the Designated Use Period, 60 per cent of all Funds will need to be

repaid.

(f) In the tenth year of the Designated Use Period, 50 per cent of all Funds will need to be

repaid.

(g) In the eleventh year of the Designated Use Period, 40 per cent of all Funds will need to be

repaid.

(h) In the twelfth year of the Designated Use Period, 30 per cent of all Funds will need to be

repaid.

(i) In the thirteenth year of the Designated Use Period, 20 per cent of all Funds will need to

be repaid.

(j) In the fourteenth year of the Designated Use Period, 10 per cent of all Funds will need to

be repaid.

(k) Following expiry of the Designated Use Period, none of the Funds need to be repaid

11. Acknowledgement and copies of publications (clause 28) The Participant must acknowledge the Department's contribution in all written forms of

communication, in the following form:

‘This project received grant funding from the Australian Government.’

12. Notices (clause 35)

12.1 Department

Director – Community Grants Hub

Department of Social Services

71 Athllon Drive, Greenway, ACT, 2900

GPO Box 9820, Canberra, ACT, 2601

Phone: 1800 044 584 (Choose Option 2 for Capital Grants team)

Email: capital@dss.gov.au

12.2 Participant

[insert]

[insert entity name]

[insert address]

Phone: [insert]

Email: [insert]

67

Schedule 2 – Milestone Schedule

Note to Applicants: The below Milestones are indicative only. To be further developed during

negotiations as between the Department and successful applicants.

Milestone Milestone description and requirements

for achievements of Milestone

Date for

completion of

Milestone

Amount of Funds

payable on

achievement of

Milestone

1. The Department has received to its

satisfaction, on terms acceptable to the

Department:

A Draft Project Plan and Budget in

accordance with clause 3.1;

Delivery of the Project Documentation in

accordance with clause 3.5 of this

Agreement and Item 2.4 of Schedule 1;

[Certificate of title for the Property/a

copy of the lease agreement for the

Property;] [Note to Applicants:

Required as part of this Milestone

where clause 7 does not apply.

Where clause 7 applies, this

deliverable will be moved to a later

Milestone.]

[Where the Funds are $1 million or more

and an interest in the Property has been

acquired by the Participant as at the

Date of this Agreement, a restricted

covenant relating to the use of the

Property, duly executed and in

registrable form.] [Note to Applicants:

Required as part of this Milestone

where clause 7 does not apply.

Where clause 7 applies, this

deliverable will be moved to a later

Milestone.]

[Where the Funds are $1 million or

more, an interest in the Property has

been acquired by the Participant as at

the Date of this Agreement, and the

Funds are 50 per cent or more of the

anticipated total Project costs: [Note to

Applicants: Required as part of this

Milestone where clause 7 does not

apply. Where clause 7 applies, this

deliverable will be moved to a later

Milestone.]

a restricted covenant relating to the

use of the Property; and

a first registered mortgage over the

Participant’s interest in the Property,

each duly executed and in registrable

form.]

If relevant, written confirmation that the

Participant has complied, to the

Department's satisfaction, with any

Date of this

Agreement

5 per cent

68

Milestone Milestone description and requirements

for achievements of Milestone

Date for

completion of

Milestone

Amount of Funds

payable on

achievement of

Milestone

conditions on the Department's approval

of the Participant's acquisition of an

interest in the Property given in

accordance with clause 7.4(b) of this

Agreement.

2. Evidence acceptable to the Department that

the following has been achieved:

Confirmation that all relevant

Contractors are compliant with the

Building Code and accredited under the

Australian Government Building and

Construction WHS Accreditation

Scheme (if required); and

20 per cent of the Project is completed

and certified by the Project Manager or

an independent quantity surveyor.

[insert] 15 per cent

3. Evidence acceptable to the Department that

the following has been achieved:

Confirmation that all relevant

Contractors are compliant with the

Building Code and accredited under the

Australian Government Building and

Construction WHS Accreditation

Scheme (if required); and

60 per cent of the project is completed

and certified by the Project Manager or

an independent quantity surveyor.

[insert] 50 per cent

4. Evidence acceptable to the Department that

Practical Completion of the Project has been

achieved.

Letter from an authorised officer of the

Participant stating that the Works are suitable

for the Designated Use.

[insert]

30 per cent

Total $[insert]

Schedule 3 – Payment Certificate Template

Commonwealth of Australia

STATUTORY DECLARATION

Statutory Declarations Act 1959

1. Insert the name,

address and

occupation of

person making

the declaration

I,1

make the following declaration under the Statutory Declarations Act 1959

as required by the Capital Works Funding Agreement for the Safe Places

Emergency Accommodation program _________________ 2019 between

[insert entity name] (Participant) and the Commonwealth of Australia

represented by the Department of Social Services (Department) (Funding

Agreement).

2. Set out matter

declared to in

numbered

paragraphs

2

1. All work the Participant has paid for using the funds payable by the

Department under the Funding Agreement and any interest earned

on those funds (Funds) was properly required for the 'Project' as it

is defined in the Funding Agreement; and

2. The amounts of each payment the Participant has made using the

Funds represent the reasonable price for the value of the work

carried out or to be carried out in light of the price for similar work

undertaken in the relevant industry marketplace.

3. No 'Conflicts' (as defined in the Funding Agreement) arose in the

Participant making payments for work using the Funds that the

Participant did not, or has not, declared to the Department; and

4. No 'Conflicts' (as defined in the Funding Agreement) arose in the

Participant entering into any Contracts (as they are defined under

[clause 5.3] of the Funding Agreement).

5. All Funds that the Participant has spent have been used for the

purpose for which they were provided.

6. To the best of my information, knowledge and belief, the Participant

has complied with all material terms and conditions of the Funding

Agreement.

I understand that a person who intentionally makes a false statement in a

statutory declaration is guilty of an offence under section 11 of the Statutory

Declarations Act 1959, and I believe that the statements in this declaration

are true in every particular.

3. Signature of

person making

the declaration

3

Full name of person making declaration:

4. Place Declared at 4 on 5 of 6

1. Insert the name,

address and

occupation of

person making

the declaration

I,1

make the following declaration under the Statutory Declarations Act 1959

as required by the Capital Works Funding Agreement for the Safe Places

Emergency Accommodation program _________________ 2019 between

[insert entity name] (Participant) and the Commonwealth of Australia

represented by the Department of Social Services (Department) (Funding

Agreement).

5. Day Before me,

6. Month and year

7. Signature of

person before

whom the

declaration is

made (see over)

7

8. Full name,

qualification and

address of

person before

whom the

declaration is

made (in printed

letters)

8

Note 1 A person who intentionally makes a false statement in a statutory declaration is guilty of an offence,

the punishment for which is imprisonment for a term of 4 years – see section 11 of the Statutory Declarations Act

1959.

Note 2 Chapter 2 of the Criminal Code applies to all offences against the Statutory Declarations Act 1959 –

see section 5A of the Statutory Declarations Act 1959.

A statutory declaration under the Statutory Declarations Act 1959 may be made before:

1. a person who is currently licensed or registered under a law to practise in one of the following

occupations:

Architect Chiropractor Dentist

Financial adviser Financial Planner Legal practitioner

Medical practitioner Midwife Migration agent registered under Division 3 of

Part 3 of the Migration Act 1958

Nurse Occupational therapist Optometrist

Patent attorney Pharmacist Physiotherapist

Psychologist Trade marks attorney Veterinary surgeon

2. a person who is enrolled on the roll of the Supreme Court of a State or Territory, or the High Court of

Australia, as a legal practitioner (however described); or

3. a person who is in the following list:

Agent of the Australian Postal Corporation who is in charge of an office supplying postal services to the public

Australian Consular Officer or Australian Diplomatic Officer (within the meaning of the Consular Fees Act 1955)

Bailiff

Bank officer with 5 or more continuous years of service

Building society officer with 5 or more years of continuous service

Chief executive officer of a Commonwealth court

Clerk of a court

Commissioner for Affidavits

Commissioner for Declarations

Credit union officer with 5 or more years of continuous service

Employee of the Australian Trade and Investment Commission who is:

(a) in a country or place outside Australia; and

(b) authorised under paragraph 3 (d) of the Consular Fees Act 1955; and

(c) exercising the employee's function at that place

Employee of the Commonwealth who is:

(a) at a place outside Australia; and

(b) authorised under paragraph 3 (c) of the Consular Fees Act 1955; and

(c) exercising the employee's function at that place

Fellow of the National Tax Accountants' Association

Finance company officer with 5 or more years of continuous service

Holder of a statutory office not specified in another item in this list

Judge of a court

Justice of the Peace

Magistrate

Marriage celebrant registered under Subdivision C of Division 1 of Part IV of the Marriage Act 1961

Master of a court

Member of Chartered Secretaries Australia

Member of Engineers Australia, other than at the grade of student

Member of the Australasian Institute of Mining and Metallurgy

Member of the Australian Defence Force who is:

(a) an officer

(b) a non-commissioned officer within the meaning of the Defence Force Discipline Act 1982 with 5 or more years of continuous service

(c) a warrant officer within the meaning of that Act

Member of:

(a) the Parliament of the Commonwealth

(b) the Parliament of a State

(c) a Territory legislature

(d) a local government authority of a State or Territory

Minister of religion registered under Subdivision A of Division 1 of Part IV of the Marriage Act 1961

Notary public

Permanent employee of the Australian Postal Corporation with 5 or more years of continuous service who is employed in an office providing postal services to the public

Permanent employee of:

(a) the Commonwealth or a Commonwealth authority

(b) a State or Territory or a State or Territory authority

(c) a local government authority

with 5 or more years of continuous service who is not specified in another item of this list

Person before whom a statutory declaration may be made under the law of the State or Territory in which the declaration is made

Police officer

Registrar, or Deputy Registrar, of a court

Senior Executive Service employee of:

(a) the Commonwealth or a Commonwealth authority

(b) a State or Territory or a State or Territory authority

Sheriff

Sheriff's officer

Teacher employed on a full-time at a school or tertiary education institution

Schedule 4 – Notice of Change

[insert entity name]

[insert address]

[if applicable, insert email or other address details]

Dear [Name of Participant Contact Officer]

Notice of Change in relation to Capital Works Funding Agreement – Safe Places Emergency Accommodation

The Commonwealth of Australia, represented by the Department of Social Services has a Capital Works Funding Agreement with [insert entity name] (the Participant) under the Safe Places Emergency Accommodation program, dated [insert date the Agreement was executed] (the Agreement).

This Notice of Change is to advise the Participant of [enter details of what is being altered e.g. a correction to date for submission of the Final Report 1 January to 30 June 2018 which was previously noted as due on 30 September 2017 but should read 30 September 2018; indexation amounts; change in bank details].

This is a legally binding change that does not vary the Participant's existing obligations under the Agreement, and, in accordance with clause 35.3 of the Agreement, does not require a formally executed variation.

The Department and the Participant agree that the only change/s effected by this Notice of Change are those specified within.

If you have any questions, please contact [Contact Name] on [Contact phone number] or by email [contact email address].

Yours sincerely,

[Signature of Delegate]

[Delegate Name]

[Delegate Position]

Department of Social Services

[Date]

Attachment A – Project Plan

[Note to Applicants: The Project Plan approved by the Department will be inserted prior to

execution of the Agreement with successful applicants.]

Attachment B – Project Budget

[Note to Applicants: The Project Budget approved by the Department will be inserted prior to

execution of the Agreement with successful applicants.]

Signing page

EXECUTED as an agreement.

Signed for and on behalf of the

Commonwealth of Australia as

represented by the Department of Social

Services by an authorised officer:

Signature of authorised officer

Witness

Name of authorised officer (print)

Name of witness (print)

Date

Executed by [insert entity name] ACN [insert] in accordance with Section 127 of the Corporations Act 2001 (Cth):

Signature of director Signature of director/company secretary

(Please delete as applicable)

Name of director (print) Name of director/company secretary

(Print)

Date